Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks and their respective successors and assigns. (b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks. (c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void). (d) Each assignment by a Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions: (i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and (ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment. (e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions: (i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation; (ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and (iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and (iv) each participant shall provide the relevant tax form required under Section 13.15. (f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto. (g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry. (h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. (i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof. (j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 4 contracts
Sources: Credit Agreement (Credit Acceptance Corp), Credit Agreement (Credit Acceptance Corp), Credit Agreement (Credit Acceptance Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon Subject to Sections 12.2(f) and shall inure to the benefit of the Company and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunderh), and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank a Lender may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any a portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in delegate all or a minimum amount portion of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the extent Loan) to one or more Persons (a “Transferee”); provided, however, that so long as no Default or Event of Default has occurred and is continuing, no such Transferee shall be a BDC or a wholly-owned Subsidiary of a BDC. Notwithstanding anything to the assigned interest)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. Upon request, Company 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 Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank effective date determined pursuant to such Assignment Lender Addition Agreement, and with respect to (i) the portion of the Indebtedness retained by the assigning BankTransferee thereunder shall be a party hereto and, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations provided in such Bank’s rights Lender Addition Agreement, have the same rights, benefits and obligations hereunder and under the other Loan Documents to any Person (other than as it would if it were a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchangedLender hereunder, (ii) such Bank the assigning Lender shall remain solely responsible be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof, as the case may be, to the other parties hereto for extent that such obligations shall have been expressly assumed by the performance Transferee pursuant to such Lender Addition Agreement (and, in the case of such obligations, and (iii) a Lender Addition Agreement covering all or the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bankremaining portion of an assigning Lender’s rights and obligations under this Agreement, and any participation permitted hereunder such assigning Lender shall comply cease to be a party hereto but, with all applicable laws and respect to matters occurring before such assignment, shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may nevertheless continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank Sections 12.4 and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.1512.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 3 contracts
Sources: Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure With the prior consent of Agent, any Lender may, notwithstanding anything to the benefit of the Company contrary in this Agreement or otherwise, at its own cost and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunderexpense, andsell, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectiontransfer, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any a portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in delegate all or a minimum amount portion of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the extent Loan) to one or more Transferees; provided, however, that any transfer of the assigned interest)less than all of any Lender’s rights hereunder or any transfer to a Person who is not a Lender hereunder shall be in minimum amounts of not less than $5,000,000. Upon request, Company 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 (“Lender Addition Agreement”). Upon such execution, delivery, acceptance and recording, from and after the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank effective date determined pursuant to such Assignment Lender Addition Agreement, and with respect to (i) the portion of the Indebtedness retained by the assigning BankTransferee thereunder shall be a party hereto and, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations provided in such Bank’s rights Lender Addition Agreement, have the same rights, benefits and obligations hereunder and under the other Loan Documents to any Person (other than as it would if it were a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchangedLender hereunder, (ii) such Bank the assigning Lender shall remain solely responsible be relieved of its obligations hereunder with respect to its Advances or assigned portion thereof, as the case may be, to the other parties hereto for extent that such obligations shall have been expressly assumed by the performance Transferee pursuant to such Lender Addition Agreement (and, in the case of such obligations, and (iii) a Lender Addition Agreement covering all or the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bankremaining portion of an assigning Lender’s rights and obligations under this Agreement, and any participation permitted hereunder such assigning Lender shall comply cease to be a party hereto but, with all applicable laws and respect to matters occurring before such assignment, shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may nevertheless continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank Sections 12.4 and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.1512.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 3 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp), Loan and Security Agreement (Bluegreen Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank Each Lender may at any time assign assign, transfer or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of sell all or any a portion of its rights and delegate all or a portion of its rights and/or obligations hereunder and under the other Loan Documents, shall be subject Documents (including all its rights and obligations with respect to the following terms and conditions:
Loans, Obligations and/or Collateral) to one or more Persons (i) each a "TRANSFEREE"); provided, that such assignment shall be in a minimum an amount of equal to the lesser of (xi) Five Million Dollars at least $500,000 and ($5,000,000ii) the remaining unpaid Obligations owing to such Lender by the Borrower; provided, however, that notwithstanding anything to the contrary in this Section 13.2(a), CapitalSource hereby agrees that so long as any Obligations (other than indemnity obligations under the Loan Documents that are not then due and payable or such lesser amount as the Agent and, provided for which any events or claims that would give rise thereto are not then pending) remain outstanding and no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten is continuing, its aggregate Commitments shall equal at least fifty and one-tenth of one percent (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any50.1%) of the total aggregate Commitments. Notwithstanding anything to the contrary in this Agreement (including, without limitation, any limitation set forth in this Section 13.2(a)), there shall be no limitation or restriction on CapitalSource's ability to assign, pledge or otherwise transfer any Note, Obligation or Loan Document pursuant to Section 13.2(e). The Transferee and such assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment Lender shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Lender Addition Agreement. Until the Assignment Agreement becomes effective in accordance with its termsUpon such execution, delivery, acceptance and recording of, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From from and after the effective date of each Assignment Agreement that satisfies determined pursuant to, such Lender Addition Agreement, (i) the requirements of this Section 13.8, the assignee Transferee thereunder shall be deemed to be a party hereto as a Lender and, to this the extent provided in such Lender Addition Agreement, such assignee have the same rights, benefits and obligations as a Lender hereunder, (ii) the assigning Lender shall have (be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (assignment or transfer to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank Transferee pursuant to such Assignment AgreementLender Addition Agreement (and, and with respect to in the case of a Lender Addition Agreement covering all or the remaining portion of the Indebtedness retained by the an assigning Bank, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s Lender's rights and obligations under this Agreement, and any participation permitted hereunder such assigning Lender shall comply with all applicable laws and cease to be a party hereto but shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may nevertheless continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank Sections 13.4 and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.1513.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Redenvelope Inc), Revolving Credit and Security Agreement (Redenvelope Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) no Borrower may, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Papers without the express written consent of all Lenders, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Notes); PROVIDED, shall be subject to the following terms and conditionsHOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) EXCEPT in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with case of an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment shall be in an amount at least equal to $5,000,000;
(including without limitation iii) 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 right Notes (to receive fees payable hereunder the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes);
(iv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially in the form of EXHIBIT F, 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 fee of $3,500, PROVIDED HOWEVER, that with respect to an assignment by a Lender to an Affiliate of such Lender, the period following processing fee shall be $1,500 (unless otherwise agreed by Administrative Agent); 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 Loan Papers, will not assign all of its Rights, duties, or obligations under the Loan Papers, 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 Papers to any Person OTHER THAN an Affiliate of such Lender. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSection 4.6.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the Companyany Borrower, the Administrative Agent, and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company any Borrower or any Bank 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 amended (but only with respect to the extent required) by Administrative Agent to reflect the names, addresses, and respective Applicable Percentages and 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 entry relating Notes (to the extent any Principal Debt owed to such Bank’s Percentages and the principal amounts owing assigning Lender is evidenced by a Note or Notes) subject to such Bank) upon reasonable notice to the Agent assignment and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company payment of the making processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of any entry EXHIBIT F, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register or any change in such entryand (iii) give prompt notice thereof to the parties thereto.
(he) Each Bank that sells a participation shall (acting as non-fiduciary agent for Subject to the Company, solely for purposes provisions of this Section 13.8and in accordance with applicable Law, any Lender may, in the ordinary course of its business and in accordance with applicable Law, at any time sell to one or more Persons (each a "PARTICIPANT") maintain participating interests in its portion of the Obligation. In the event of any such sale to a register on which it enters the name and address of each participant Participant, (i) such Lender shall remain a "LENDER" under this Agreement and the principal amounts 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 Principal Debt for all purposes under this Agreement, (and stated interest onv) each participant’s interest Borrower and Administrative Agent shall continue to deal solely and directly with such Lender in each type of Advance or other connection with such Lender's Rights and obligations under the Loan Documents 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 each 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 Lender shall 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 any Borrower shall be obligated to pay any amount in excess of the amount that would be due to such Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”); provided that no Bank shall have any obligation Rights to disclose approve any amendment, modification, or waiver of any Loan Paper, EXCEPT to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 the 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 Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except is entitled to the extent that such disclosure is necessary benefits of SECTION 4 or a Lender grants Rights to establish that such commitment, loan, letter of credit its Participants to approve amendments to or other obligation is in registered form under Section 5f.103-1(c) waivers of the United States Treasury Regulations. The entries Loan Papers respecting the matters previously described in the Participant Register shall be conclusive absent manifest errorthis sentence, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
Lender must either (i) Company authorizes each Bank 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 Lender or Participant) shall control the vote for all of such Lender's portion of the Obligation or (ii) create another mechanism with Participant to disclose to avoid any prospective assignee stalemate of, or participant which has satisfied the requirements hereunderpartial exercise of, any and all financial information voting Rights under the Loan Papers. EXCEPT in such Bank’s possession concerning the Company and case of the sale of a 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 Subsidiaries portion of the Obligation, UNLESS the consent of the transferring Lender (which consent will not be unreasonably withheld) has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofobtained.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Logix Communications Enterprises Inc)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company of its rights Each Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights Rights and obligations hereunder and under the other Loan DocumentsDocuments (including, shall be subject without limitation, all or a portion of its Borrowings and its Notes [to the following terms and conditionsextent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes]); provided, however, that:
(i) each Each such assignment shall be to an Eligible Assignee; Credit Agreement 95
(ii) Except in the case of an assignment to another Lender, an Affiliate of any Lender, or an Approved Fund of any Lender, or in the case of an assignment of all of a minimum amount of Lender's Rights and obligations under the lesser of (x) Five Million Dollars ($5,000,000) or Loan Documents, any such lesser amount as partial assignment under any Facility shall not be less than the following amounts for the Facility indicated, unless Administrative Agent and, provided no Event of unless a Default under Section 9.1(a) or Section 9.1(j) Potential Default has occurred and is continuing 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 Minimum Assignment ============================================================ Revolver Facility $2,500,000 (inclusive of any concurrent assignments under the Term Loan A Facility or the Term Loan B Facility by the assigning Lender to the same assignee) ------------------------------------------------------------ Term Loan A $2,500,000 (inclusive of any other Event of Default has occurred and has continued concurrent assignments under the Revolver Facility or the Term Loan B Facility by the assigning Lender to the same assignee) ------------------------------------------------------------ Term Loan B $1,000,000 ------------------------------------------------------------ Term Loan C $1,000,000 ============================================================ ; provided that, no partial assignment for ten any Facility (10including any assignment among Lenders) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations may result in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be Lender holding less than $5,000,000; and500,000 in any Facility;
(iiiii) Each such assignment by a Lender shall be of a proportionate part of all of the assigning Lender's Rights and obligations under this Agreement and the Notes (to the extent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes), 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 and obligations in respect of one Facility;
(iv) The parties to any such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially (as determined by Agent) in the form attached hereto as of Exhibit G (with appropriate insertions acceptable to Agent)F, 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 (or $2,500 for an assignment between Lenders) unless such fee is waived or reduced by Administrative Agent; and
(v) So long as any Lender is an Agent (other than a Co-Agent or Managing Agent) under this Agreement, such Lender (or an Affiliate of such Lender) shall retain an economic interest in the amountLoan Documents, if anywill not assign all of its Rights, required as set forth in duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment Agreement. Until and Acceptance Agreement that would have the Assignment effect of such Lender assigning all of its Rights, duties, or obligations under the Loan Documents to any Credit Agreement becomes effective 96 Person other than an Affiliate of such Lender unless such Agent has relinquished such title in accordance with its termsSection 12.1 (with respect to Administrative Agent) or Section 12.10 (with respect to the other Agents). Upon execution, delivery, acceptance, and Agent has confirmed that the assignment satisfies the requirements recordation of this Section 13.8, the Company such Assignment and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8Acceptance Agreement, the assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of such assignment, have the assigned interest) the rights obligations, Rights, and obligations benefits of a Bank 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) and the assigning Bank shall Lender shall, to the extent of such assignment, relinquish its rights Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSection 4.6.
(ec) The Company and the Administrative Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes this administrative purpose as an agent of this Section 13.8Borrower) shall maintain at its principal office address referred to in Section 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "Register"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Administrative Agent, and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe 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 amended (to the extent required) by Administrative Agent to reflect the name, address, and, where appropriate, the respective Committed Sums under the Facilities of the assignor and assignee. No assignment shall be effective until recorded in the Register as provided in this Section 13.13(c).
(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, (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 any Company or any Bank Affiliate of any Company) (but only with respect each a "Participant") participating interests in its portion of the Obligation. In the event of any such sale to any entry relating to a Participant, (i) such Bank’s Percentages Lender shall remain a "Lender" under the Loan Documents and the principal amounts owing to Participant shall not constitute a "Lender" hereunder, (ii) such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other 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 Credit Agreement 97 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 withholding 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 Lender shall 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 Lender under Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”shall have any Rights to approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 the Obligation (except such reductions as are contemplated by the Loan Documents), or releases all or substantially all of the Guaranties or all or substantially all 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 no Bank 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 Lender or Participant) shall have control the vote for all of such Lender's portion of the Obligation. Except in the case of the sale of a 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 obligation to disclose other provision set forth in this Agreement, any Lender may, without notice to, or consent of Borrower or Administrative Agent, at any time assign and pledge all or any portion of its Borrowings and its Notes (to the Participant Register (including the identity of extent any participant Principal Debt owed to such assigning Lender is evidenced by a Note or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan DocumentNotes) to any Person except 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 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 holders of obligations owed or securities issued by such fund as security for such obligations or securities; provided that such disclosure is necessary any transfer to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of any Person upon the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner enforcement of such participation for all purposes of pledge or security interest may only be made subject to this Agreement notwithstanding any notice to Section 13.13. No such assignment shall release the contrary. For the avoidance of doubt, the Agent (in assigning Lender from its capacity as Agent) shall have no responsibility for maintaining a Participant Registerobligations hereunder.
(ig) Company authorizes each Bank to disclose to Any Lender may furnish any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company Companies in the possession of such Lender from time to time to Eligible Assignees and its Subsidiaries which has been delivered Participants (including prospective Eligible Assignees and Participants) and to such Bank pursuant counterparties under a Financial Hedge issued by a Lender or an Affiliate of a Lender to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound extent permitted by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.. Credit Agreement 98
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assignsassigns permitted hereby, except that 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 Borrower without such consent shall be null and void). 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, and, to the extent expressly contemplated hereby, Indemnified Parties) any legal or equitable right, remedy, or claim under or by reason of this Agreement.
(b) The foregoing shall not authorize any assignment by Company of its rights Any Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights under this Agreement (including all or a portion of its Revolving Credit Commitment, Notes, and obligations hereunder and under Loans (including for purposes of this Section 10.2(b) participations in the other Loan Documents, shall be subject Letter of Credit Exposure) at the time owing to the following terms and conditions:
it); provided that (i) each such except in the case of an assignment shall be in a minimum of the entire remaining amount of the lesser assigning Lender’s Revolving Credit Commitment, Notes, and Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Revolving Credit Commitment (xwhich for this purpose includes Loans outstanding thereunder) Five Million Dollars (subject to each such assignment, determined as of the date the Assignment and Acceptance Agreement with respect to such assignment is delivered to Administrative Agent, shall not be less than $5,000,000) 5,000,000 or such lesser amount as the a greater integral multiple of $1,000,000 unless each of Administrative Agent and, provided so long as no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten is continuing, Borrower otherwise consents (10each such consent not to be unreasonably withheld or delayed), (ii) days, Company each partial assignment shall agree and (y) be made as an assignment of a proportionate part of all the entire remaining amount of assigning BankLender’s aggregate interest in rights under this Agreement with respect to the Revolving Credit Commitment, Notes, and Loans assigned, (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(iiiii) the parties to any each assignment shall execute and deliver to Administrative Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)and Acceptance Agreement, together with a processing and recordation fee in of $3,500, and (iv) the amountassignee Lender, if anyit is not a Lender prior to the effectiveness of such assignment, required as set forth in the Assignment Agreementshall deliver an administrative questionnaire to Administrative Agent. Until the Assignment Agreement becomes effective in accordance with its termsSubject to acceptance and recording thereof by Administrative Agent pursuant to Section 10.2(c), and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From from and after the effective date of specified in each Assignment Agreement that satisfies the requirements of this Section 13.8and Acceptance Agreement, the assignee Eligible Assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of the interest assigned interest) by such Assignment and Acceptance Agreement, have the rights and obligations of a Bank 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) Agreement, and the assigning Bank shall relinquish its rights Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all of the other Loan Documents (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 Section 2.12(a) and Section 2.12(b), but only to the extent of pertaining to the assigned interestperiod such party was a Lender, and Section 8.6). Upon request, Company Borrower 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 10.2(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 10.2(d).
(c) Administrative Agent, new Note(s) payable acting solely for this purpose as an agent of Borrower, shall maintain at Administrative Agent’s office a copy of each Assignment and Acceptance Agreement delivered to it and a register for the order recordation of the assignee in an names and addresses of Lenders, and the Revolving Credit Commitments of, and principal amount of the Revolving Commitment equal Loans and Letter of Credit Exposure owing to, each Lender pursuant to the amount assigned terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and Borrower, Administrative Agent, Letter of Credit Issuers, and Lenders may treat each Person whose name is recorded in the Register pursuant to the assigning Bank pursuant to such Assignment terms hereof as a Lender hereunder for all purposes of this Agreement, and with respect notwithstanding notice 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 of the Revolving Commitment retained by such Bank hereundercontrary. The Register shall be available for inspection by Borrower, Administrative Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement Letter of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior NoteCredit Issuers, and each such new Note may contain a provision confirming such agreement. In additionLenders, promptly following receipt of such Notes, Agent shall prepare and distribute to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any reasonable time and from time to timetime upon reasonable prior notice.
(d) Any Lender may, subject without the consent of, or notice to, Borrower, any Lender, or Administrative Agent, sell participations to the terms one (1) or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights under this Agreement (including all or a portion of its Revolving Credit Commitment, Notes, and conditions hereof, grant Loans (including such Lender’s participations in such Bank’s rights and obligations hereunder and under the other Loan Documents Letter of Credit Exposure) owing to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiariesit); provided that (i) such BankLender’s obligations under this Agreement shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the CompanyBorrower, the Administrative Agent, Letter of Credit Issuers, and the Banks Lenders shall continue to deal solely and directly with such Bank Lender in connection with such BankLender’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject . Any agreement or instrument pursuant to which a Lender sells such a participation agreement shall provide that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank Lender shall retain the sole right and responsibility to enforce the obligations of the Company this Agreement and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification modification, or waiver of any provision of this Agreement Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the participant Participant, agree to any amendment, waiver, or other modification that would (unless A) postpone any date upon which any payment of money is scheduled to be paid to such participant is an Affiliate of Participant, (B) reduce the principal, interest, fees, or other amounts payable to such Bank)Participant, or (C) release any guarantor, except for those matters requiring as expressly provided herein. To the consent of extent permitted by Applicable Law, each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant Participant also shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause Section 2.11
(da) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a BankLender, provided that such participant Participant agrees to be subject to Section 10.3 hereof 2.11(b) as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15Lender.
(fe) Any Bank Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Notes, if any) to secure obligations of such BankLender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank a Lender from any of its obligations hereunder or substitute any such pledge pledgee or assignee for such Bank Lender as a party hereto, 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, Letter of Credit Issuers, and Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights under this Agreement.
(gf) The Agent shall (acting as non fiduciary agent for If the Company, solely for purposes consent of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered Borrower to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing an assignment or to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall treat each Person whose name an Eligible Assignee is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register required hereunder (including a consent to an assignment which does not meet the identity of any participant or any information relating to a participant's interest minimum assignment threshold specified in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(cclause (i) of the United States Treasury Regulations. The entries in proviso to the Participant Register first sentence of Section 10.2(b)), Borrower shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in deemed to have given its consent five (5) Business Days after the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any date notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which thereof has been delivered by the assigning Lender (through Administrative Agent) unless such consent is expressly refused by Borrower prior to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
fifth (j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.5th)
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) assignments by Borrower are subject to the restrictions of SECTION 7.16, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights and obligations hereunder and under the other Loan DocumentsBorrowings, shall be subject its Notes [to the following terms and conditionsextent such Principal Debt owed to such Lender is evidenced by Notes]); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the another Lender or an assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights and obligations all of a Bank under this Agreement Lender's Rights and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents Papers, any such partial assignment (when aggregated with the amounts of any concurrent assignments under Facility B and/or Facility A by the assigning Lender to the same assignee) shall be in an amount at least equal to $10,000,000, but in no event shall an assigned interest in any of Facility A, Facility B, or the 364-Day Facility be less than $1,000,000 (except in case of an assignment of all of such 364-Day Facility Lender's interest in any such facility);
(iii) 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 (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned Principal Debt owed to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness Lender is evidenced by such prior Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such any Notes, Agent shall prepare and distribute to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub364-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT 58 64 (iv) each participant such assignment shall provide exclude Competitive Borrowings, unless the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in assigning Lender is selling all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it Rights and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.Papers;
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of Holdings, the Company and Company, the Banks Subsidiary Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans, and their respective successors and assigns, except that neither Holdings nor the Company may assign or transfer any of its rights or obligations under this Agreement (except, in the case of Holdings, as expressly contemplated by Section 7.5(c)) without the prior written consent of each Lender.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunderEach Lender may, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without with the prior written approval consent of the Banks.
Company, the Issuing Lender and the Administrative Agent (c) No Bank may at any time assign or grant participations such consent not to be unreasonably withheld but in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way case of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank Company it shall be deemed reasonable for the Company to withhold its consent if as a result of any assignment (x) the total number of Lenders would be null and voidgreater than 20 or (y) the Company would be required to pay any additional amounts pursuant to Section 2.15 or 2.16).
(d) Each assignment by a Bank of , assign to one or more banks or other entities all or any a portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights and obligations of a Bank under this Agreement and the other Loan Documents (including including, without limitation limitation, all or a portion of its Revolving Credit Commitment and the right Loans owing to receive fees payable hereunder it); provided, however, that (i) in respect the case of each assignment of a Revolving Credit Commitment, except in the case of an assignment of all of a Lender's Revolving Credit Commitment, (x) the amount of the period following Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or such lesser amount as the Company may consent to and (y) after giving effect to each such assignment, the amount of the Revolving Credit Commitment of the assigning Bank Lender shall in no event be less than $5,000,000, and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance and pay to the Administrative Agent a processing and recordation fee of $4,000. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). Upon the effectiveness of any Assignment and Acceptance, Schedule 1.1A shall be deemed amended to reflect the identities and Revolving Credit Commitments of the Lenders after giving effect thereto.
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any other Loan Party or the performance or observance by the Company or any other Loan Party of any of its obligations under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, on behalf of the Company, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents (Documents, notwithstanding any notice to the extent contrary. Any assignment of the assigned interest). Upon request, Company any Loan or other obligation hereunder shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and be effective only upon appropriate entries with respect to thereto being made in the portion of the Indebtedness retained Register. The Register shall be available for inspection by the assigning Bank, Company or any Lender at any reasonable time and from time to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank time upon reasonable prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentnotice.
(e) The Company Upon its receipt of an Assignment and Acceptance accepted by an assigning Lender and an assignee, the Administrative Agent acknowledge that each 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 Banks may at any time information contained therein in the Register and from time to time, subject (iii) give prompt notice thereof to the terms and conditions hereofCompany.
(f) Each Lender may sell participations to one or more banks or other entities (each, grant participations a "Participant") in such Bank’s all or a portion of its rights and obligations hereunder under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitment and under the other Loan Documents Loans owing to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiariesit); provided provided, however, that (i) such Bank’s Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment to the Company hereunder) shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) for purposes of Section 2.16, such Lender shall continue to be treated as if it had not sold any such participation, such that no Participant shall have any right to any indemnity or additional payment under such Section, and such Lender shall be entitled to receive additional payments pursuant to such Section calculated on the Companyassumption that it had not sold any such participation, (iv) the Borrowers, the Administrative Agent, Agent and the Banks other Lenders shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s Lender's rights and obligations under this Agreement, Agreement and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(iv) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding no Participant under any such participation;
(ii) a participant participation shall not reassign or transfer, or grant have any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification amendment or waiver of any provision of this Agreement without the consent of the participant (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) , or any consent to any Person departure by any Loan Party therefrom, except to the extent that such disclosure is necessary amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, in each case to establish that the extent subject to such commitmentparticipation, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) postpone the date of the United States Treasury Regulations. The entries final maturity of, or any date fixed for any payment of interest on, the Loans, in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice case to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Registerextent subject to such participation.
(ig) Company Each Borrower authorizes each Bank Lender to disclose to any Participant or assignee (each, a "Transferee") and any prospective assignee or participant which has satisfied the requirements hereunder, Transferee any and all financial information in such Bank’s Lender's possession concerning the Company and its Subsidiaries Affiliates which has been delivered to such Bank Lender by or on behalf of any Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of any Borrower in connection with such Lender's credit evaluation of the Company and its Affiliates prior to becoming a party to this Agreement; provided, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with that, unless the terms of Section 13.13 hereof or Administrative Agent and the Company shall otherwise agree agree, prior to be bound by any such disclosure such Transferee shall have executed a Confidentiality Letter in the terms thereofform of Exhibit L.
(h) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with applicable law. In order to facilitate such pledge or assignment, the Company hereby agrees that, upon request of any Lender at any time and from time to time, the Company shall provide to such Lender, at the Company's own expense, a promissory note, in form and substance reasonably satisfactory to the Company, evidencing the Loans so pledged or assigned Lender.
(ji) Nothing in this AgreementIf, after the date that any Lender becomes a Lender, the Notes long-term certificate of deposit rating of such Lender shall be downgraded by both Standard & Poor's Ratings Services ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") (or, in the case of any Lender which is not so rated by both S&P and Moody's on the date on which it becomes a Lender, by ▇▇▇▇▇▇▇▇'▇ BankWatch and, if applicable, S&P or Moody's), and as a result of such downgrade such Lender shall be rated below BBB- by S&P and below Baa3 by Moody's, or the other Loan Documentsequivalent (or, expressed in the case of any Lender which is not so rated by both S&P and Moody's on the date on which it becomes a Lender, below C by ▇▇▇▇▇▇▇▇'▇ BankWatch and, if applicable, below BBB- by S&P or impliedbelow Baa3 by Moody's, is intended or the equivalent), then the Issuing Lender shall have the right, but not the obligation, at its own expense, upon notice to such Lender and the Administrative Agent, to replace (or to request that the Company use its reasonable efforts to replace) such Lender with an assignee (in accordance with and subject to the restrictions contained in Section 11.6(b)), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in Section 11.6(b)) all its interests, rights and obligations hereunder to such assignee; provided, that (i) no such assignment shall confer conflict with any Requirement of Law of any Governmental Authority and (ii) the Issuing Lender or such assignee, as the case may be, shall pay to such Lender in immediately available funds on any Person other than the respective parties hereto date of such assignment the principal of and thereto and their successors and assignees and participants permitted interest accrued to the date of payment of the Loans made by such Lender hereunder and thereunder any benefit all other amounts accrued for such Lender's account or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documentsowed to it hereunder.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted under this Section 14.13, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Notes, shall be subject to the following terms and conditionsif any); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender’s Rights and obligations of a Bank under this Agreement and the other Loan Documents Documents, any such partial assignment shall be in an amount not less than $1,000,000;
(including without limitation iii) 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;
(iv) the right parties to receive fees payable hereunder such assignment shall execute and deliver to Administrative Agent for its acceptance (such acceptance not to be unreasonably withheld) an Assignment and Acceptance Agreement in respect the form of Exhibit F hereto, together with any Notes subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the period following assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Bank shall 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 Agreement Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue appropriate Notes upon request to the assignor and the other 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, then it shall deliver to Borrower and Administrative Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 4.6(d).
(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, 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 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 amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Committed Sums of the assigned interest). assignor and assignee.
(d) Upon request, Company shall execute its receipt of an Assignment and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and with respect to the portion of the Indebtedness retained Acceptance Agreement executed by the assigning Bankparties thereto, to the extent applicabletogether with any Notes, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agentif any, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior subject to such assignment and shall not effect or constitute a novation or discharge payment of the Indebtedness evidenced by processing fee, Administrative Agent shall, if such prior NoteAssignment 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 each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company Subject to the provisions of this Section and in accordance with applicable Law, any Lender may, in the Agent acknowledge that each ordinary course of the Banks may its commercial banking business and in accordance with applicable Law, at any time and from time sell to timeone or more Persons (each a “Participant”) participating interests in its portion of the Obligation. In the event of any such sale to a Participant, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such BankLender 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, (iiiii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance thereof, (iv) such Lender shall remain the holder of such obligationsits share of the Principal Debt for all purposes under this Agreement, (v) Borrower and (iii) the Company, the Administrative Agent, and the Banks Agent shall continue to deal solely and directly with such Bank Lender in connection with such BankLender’s rights Rights and obligations under this Agreementthe Loan Documents, and (vi) such Lender shall be solely responsible for any withholding taxes or any fling or reporting requirements relating to such participation permitted hereunder shall comply with all applicable laws 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 Lender shall be subject entitled to a participation agreement that incorporates the following restrictions:
obtain (i) such Bank shall remain the holder on behalf of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(iiParticipants) a participant shall not reassign or transfer, or grant any sub-the benefits of Section 4 with respect to all participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating Obligation outstanding from time to time so long as Borrower shall not be obligated to pay any amount in excess of the Notes and amount that would be due to such Lender under Section 4 calculated as though no participation have been made. No Lender shall sell any participating interest under which the other Loan Documents, including, without limitation, the right to proceed against Participant shall have any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right Rights to approve any amendment, modification modification, or waiver of any provision of this Agreement without the consent of the participant (unless such participant is an Affiliate of such Bank)Loan Document, except to the extent such amendment, modification, or waiver extends the due date for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case payment of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank amount in respect of such participation as may be set forth in principal (other than mandatory prepayments), interest, or fees due under the applicable participation agreement. Each such participant shall be entitled to Loan Documents, reduces the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of rate or the amount of principal or fees applicable to the participation transferred Obligation (except such reductions as are contemplated by this Agreement), or releases any material Guaranty or all or any substantial portion of any collateral, if any, for the Obligation under the Loan Documents (except such issuing Bank to such participant had no such transfer occurred and each such participant shall also be releases as are contemplated by this Agreement); provided that in those cases where a Participant is entitled to the benefits of Section 9.7 hereof as though it were 4 or a BankLender grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, provided that such participant agrees to be subject to Section 10.3 hereof as though it were Lender must include a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide voting mechanism in the relevant tax form required under Section 13.15participation agreement or agreements, as the case may be, whereby a majority of such Lender’s portion of the Obligation (whether held by such 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 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) Any Bank Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) Borrowings and any Notes to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such Bank the assigning Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretohereunder.
(g) The Agent shall (acting as non fiduciary agent for Any Lender may furnish any information concerning the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (Companies in the “Register”) for the recordation of the names and addresses of the Banks, the Percentages possession of such Banks and the principal amount of each type of Advance owing to each such Bank Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, time to Eligible Assignees and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register Participants (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, prospective Eligible Assignees and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant RegisterParticipants).
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Exchange Agreement (Protection One Alarm Monitoring Inc)
Successors and Assigns; Assignments and Participations. (a) This All representations, covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto shall be binding upon bind and shall inure to the benefit of the Company and the Banks and their respective successors and assignsassigns (including, without limitation, any subsequent holder of any Note), whether so expressed or not.
(b) The foregoing shall not authorize any assignment by Company Any Lender may, pursuant to the provisions of its rights or duties hereunderthis Section 8.8(b), andassign, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations times, all or any portion, but if a partial assignment, in such Bank’s rights and obligations an amount at least equal to $5,000,000, of the Loans, Loan Documents and/or any Commitment hereunder and or of any portion, thereof or interest therein, including Lender's rights, title, interests, remedies, powers or duties hereunder or under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each Person; provided that such assignment shall be in to a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as Person acceptable to the Agent and, provided if no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten is continuing, such assignment shall be to a Person acceptable to Aerial; provided further, however, that Aerial shall be entitled to classify a prospective assignee as not acceptable only if Aerial in its reasonable judgment believes such assignment could be disadvantageous to Aerial. Any assignment of a Lender shall be evidenced by a writing in the form of Exhibit D hereto (10"Assignment Agreement"). The Agent shall give Aerial written notice ("Assignment Notice") days, Company of any proposed assignments which notice shall agree and contain (yi) the entire remaining dollar amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however thatto be assigned, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties name of the proposed assignee, and (iii) the price which the proposed assignee is expected to any pay for such assignment. Any proposed assignment shall execute and deliver be deemed to have been consented to by Aerial unless Aerial provides written notice to the Agent an within five (5) Business Days of receipt of the applicable Assignment Agreement substantially Notice that (as determined by Agenti) it withholds its consent of such proposed assignment (such notice to contain a reasonable description of the reasons for Aerial's withholding consent therefor), or (ii) it will prepay in whole, or in part, the form attached hereto as Exhibit G portion of the Loans or Commitment which the Agent proposed to assign or participate (with appropriate insertions acceptable such prepayment to occur not later than thirty (30) days after such notice to the Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From On and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8such assignment, the assignee thereunder such assignee, if not already a Lender, shall be deemed to for all purposes be a Lender party to this Agreement, such assignee Agreement and any other Loan Documents and shall have (to the extent of the assigned interest) all the rights and obligations of a Bank Lender under the Loan Documents, to the same extent as if it were an original party hereto, and no further consent or action by Aerial, any other Lender or the Agent shall be required to release the transferor Lender with respect to the percentage of the Commitment and Loans assigned to such assignee. Upon the consummation of any assignment to an assignee pursuant to this Section 8.8(b), the assignor Lender, the assignee Lender, the Agent and Aerial shall make appropriate arrangements so that the assignee Lender shall receive all deliveries and notices provided for under this Agreement. The Agent shall maintain at its address referred to in Section 8.5 a copy of each Assignment Agreement for the recordation of the names and addresses of any Lender and the Commitment of and principal amount of the Loans owing to each Lender from time to time (the "Register"). Upon the effectiveness of any assignment permitted hereby, Aerial acknowledges and agrees that such assignment shall give rise to a direct obligation of Aerial to the Lender and any such Lender together with Nokia, to the extent Nokia maintains any share of the Loans or Commitment, shall be considered, collectively, to be the "Lenders" for all purposes 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentDocuments.
(ec) The Company Any Lender may, in the ordinary course of its business and the Agent acknowledge that each of the Banks may in accordance with applicable law, at any time and from time sell to timeone or more banks or other entities not directly or indirectly in competition with either Loan Party ("Participants") participating interests in any Loan owing to such Lender, subject to the terms and conditions hereof, grant participations in any Note held by such Bank’s rights and obligations hereunder and Lender or any Commitment of such Lender or any other interest of such Lender under the other Loan Documents on a pro rata or non-pro rata basis. In the event of any such sale by a Lender of participating interests to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) Participant, such Bank’s Lender's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) such Lender shall remain the Companyholder of any such Note for all purposes under the Loan Documents, the Administrative Agentsuch Lender shall be solely responsible for any withholding taxes or any filing or reporting requirements in connection therewith relating to such Participant, all amounts payable by Aerial under this Agreement shall be determined as if such Lender had not sold such participating interests, and Aerial and the Banks Agent shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s Lender's rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agentexcept that, for purposes of Section 2.7 hereof, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant Participants shall be entitled to the benefits of Article 11 of this Agreement to the same extent rights as if it they were a Bank and had acquired its interest by assignment pursuant to clause (d) of this SectionLenders, provided that no participant Participant shall be entitled to receive any greater amount pursuant to Section 2.7 than such the provisions of Article 11 than the Bank selling such participation Lender would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant Participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15occurred.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Documents without the express written consent of all Banks, and (ii) except as permitted under this Section, no Bank may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Bank may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Note); provided, shall be subject to the following terms and conditionshowever, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Bank or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Bank's Rights and obligations of a Bank under this Agreement and the other Loan Documents REVOLVING CREDIT AGREEMENT 49 55 Documents, any such partial assignment shall be in an amount at least equal to $10,000,000;
(including without limitation iii) each such assignment by a Bank shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Agreement and its Note;
(iv) the right parties to receive fees payable hereunder such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in respect the form of EXHIBIT D (the period following "ASSIGNMENT AND ACCEPTANCE") hereto, together with any Notes subject to such assignment and a processing fee of $3,000; and
(v) no such assignment may be made to an Eligible Assignee that is a pension or welfare plan as defined in Section 3 of ERISA, or other entity that holds the assets of any such plan, except that such an assignment to or on behalf of a pension or welfare plan or other entity that holds the assets of any such plan shall be permitted so long as the acquisition and holding by the assignee of any Note or interest in the Borrowings do not constitute a prohibited transaction under ERISA or are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to one or more prohibited transaction statutory or administrative exemptions. 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 Bank under the Loan Documents and the assigning Bank shall 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 Agreement Section, Borrower shall issue appropriate Notes to the assignor and the other assignee, reflecting the transaction evidenced by 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 12.3 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 Banks and their respective Committed Sums, and principal amount of the Borrowings owing to each Bank from time to time (the "REGISTER"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of the Loan Documents Documents. The Register shall be available for inspection by Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice. Upon the consummation of any assignment in accordance with this SECTION 12.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Committed Sums of the assigned interest). assignor and assignee.
(d) Upon request, Company shall execute its receipt of an Assignment and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and with respect to the portion of the Indebtedness retained Acceptance executed by the assigning Bankparties thereto, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that together with any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior subject to such assignment and shall not effect or constitute a novation or discharge payment of the Indebtedness evidenced by processing fee, Administrative Agent shall, if such prior NoteAssignment and Acceptance has been completed and REVOLVING CREDIT AGREEMENT 50 56 is in substantially the form of EXHIBIT D hereto, (i) accept such Assignment and each such new Note may contain a provision confirming such agreement. In additionAcceptance, promptly following receipt of such Notes, Agent shall prepare (ii) record the information contained therein in the Register and distribute (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company Subject to the provisions of this Section and in accordance with applicable Law, any Bank may, in the Agent acknowledge that each ordinary course of the Banks may its commercial banking business and in accordance with applicable Law, at any time and from time sell to timeone or more Persons (each a "PARTICIPANT") participating interests in its portion of the Obligation. In the event of any such sale to a Participant, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank shall remain a "Bank’s " under this Agreement and the Participant shall not constitute a "Bank" hereunder, (ii) such Bank's obligations under this Agreement shall remain unchanged, (iiiii) such Bank shall remain solely responsible to the other parties hereto for the performance thereof, (iv) such Bank shall remain the holder of such obligationsits share of the Principal Debt for all purposes under this Agreement, (v) Borrower and (iii) the Company, the Administrative Agent, and the Banks Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights 's Rights and obligations under this Agreementthe Loan Documents, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(ivi) such Bank shall remain be solely responsible for any withholding 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 holder same. Participants shall have no Rights under the Loan Documents, other than certain voting Rights as provided below. Subject to the following, each Bank shall be entitled to obtain (on behalf of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(iiParticipants) a participant shall not reassign or transfer, or grant any sub-the benefits of SECTION 4 with respect to all participations in its participation interest hereunder or part of the Obligation outstanding from time to time so long as Borrower shall not be obligated to pay any part thereof; and
(iii) amount in excess of the amount that would be due to such Bank under SECTION 4 calculated as though no participations have been made. No Bank shall retain sell any participating interest under which the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against Participant shall have any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right Rights to approve any amendment, modification modification, or waiver of any provision of this Agreement without the consent of the participant (unless such participant is an Affiliate of such Bank)Loan Document, except to the extent such amendment, modification, or waiver extends the due date for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case payment of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank amount in respect of principal (other than mandatory prepayments), interest, or fees due under the Loan Documents, or reduces the interest rate or the amount of principal or fees applicable to the Obligation (except such participation reductions as may be set forth are contemplated by this Agreement), provided that, in the applicable participation agreement. Each such participant shall be those cases where a Participant is entitled to the benefits of Article 11 of this Agreement to the same extent as if it were SECTION 4 or a Bank grants Rights to its Participants to approve amendments to or waivers of the Loan Documents respecting the matters previously described in this sentence, such Bank must include a voting mechanism in the relevant participation agreement or agreements, as the case may be, whereby a majority of such Bank's portion of the Obligation (whether held by such Bank or Participant) shall control the vote for all of such Bank's portion of the Obligation. Except in the case of the sale of a participating interest to another Bank, 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 Bank (which consent will not be unreasonably withheld) has been obtained. No Bank shall sell any participating interest to a Participant that is a pension or welfare plan as defined in SECTION 3 of the ERISA or other entity that holds the assets of any such plan, except that such a sale to or on behalf of a pension or welfare plan or other entity that holds the assets of any such plan shall be permitted so long as the acquisition and had acquired holding by the Participant of its participating interest by assignment do not constitute a prohibited transaction under ERISA or are exempt from the prohibited transaction restrictions of ERISA and the Code pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company one or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.more prohibited transaction statutory or administrative exemptions. REVOLVING CREDIT AGREEMENT 51 57
(f) Any Notwithstanding any other provision set forth in this Agreement, any Bank may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement (including Borrowings and its Notes, if any) Note to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such the assigning Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretohereunder.
(g) The Agent shall (acting as non fiduciary agent for Any Bank may furnish any information concerning the Company, solely for purposes Companies in the possession of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, time to Eligible Assignees and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register Participants (including the identity of any participant or any information relating prospective Eligible Assignees and Participants), subject, however, to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant RegisterSECTION 12.15.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties, or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted NBPLP CREDIT AGREEMENT under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company of its rights Each Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights Rights and obligations hereunder and under the other Loan DocumentsDocuments (including, shall be subject without limitation, all or a portion of its Borrowings and its Notes to the following terms and conditionsextent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of to an Eligible Assignee;
(xii) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest except in the Revolving Credit (and participations in any outstanding Letters case of Credit); provided however that, after giving effect an assignment to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest another Lender or in the Revolving Credit (case of an assignment of all of a Lender's Rights and participations in obligations under the Loan Documents, any outstanding Letters of Credit) such partial assignment under the Facility shall not be less than $5,000,0005,000,000 unless Borrower and Administrative Agent consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the related Assignment and Acceptance Agreement; andprovided that, no partial assignment for the Facility (including any assignment among Lenders) may result in any Lender holding less than $10,000,000, provided further that, a Lender may hold an amount less than $10,000,000 but greater than $5,000,000 only if such Lender shall hold at least $10,000,000 in the aggregate of this Facility and the Multi- Year Revolving Agreement (notwithstanding the foregoing, in the event the Multi-Year Revolving Agreement is terminated, any Lender may continue to hold an amount in this Facility greater than or equal to the amount such Lender held on the date of the termination of the Multi-Year Revolving Agreement);
(iiiii) the parties to any such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)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, including, without limitation, any assignment between Lenders; and
(iv) 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 amountLoan Documents, if anywill not assign all of its Rights, required as set forth in duties, or obligations under the Loan Documents, except to an Affiliate of such Lender, and will not enter into any Assignment Agreement. Until and Acceptance Agreement that would have the Assignment Agreement becomes effective 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 Agent has relinquished such title in accordance with its termsSECTION 13.1 (with respect to Administrative Agent) or SECTION 13.10 (with respect to the other Agents). Upon execution, delivery, and Agent has confirmed that the assignment satisfies the requirements acceptance of this Section 13.8, the Company such Assignment and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8Acceptance Agreement, the assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of such assignment, have the assigned interest) the rights obligations, Rights, and obligations benefits of a Bank 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) and the assigning Bank shall Lender shall, to the extent of such assignment, relinquish its rights Rights and be released from its obligations under the Loan Documents. Upon the consummation of any assignment pursuant to this Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSECTION 4.6.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 14.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for NBPLP CREDIT AGREEMENT the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment Percentage, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Agent, Administrative Agent and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Documents. The Register shall be available for inspection by the Company Borrower or any Bank (but only with respect Lender at any reasonable time and from time to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) time upon reasonable notice prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to reflect the Company name, address, and, where appropriate, respective Committed Sums under the Facility (as the case may be) of the making of any entry in the Register or any change in such entryassignor and assignee.
(hd) Each Bank that sells 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 participation shall 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, (acting as non-fiduciary agent for i) accept such Assignment and Acceptance Agreement, (ii) record the Companyinformation contained therein in the Register, solely for purposes and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section 13.8and 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") maintain participating interests in its portion of the Obligation. In the event of any such sale to a register on which it enters Participant, (i) such Lender shall remain a "Lender" under the name and address of each participant Loan Documents and the principal amounts of Participant shall not constitute a "Lender" hereunder, (and stated interest onii) each participant’s interest in each type of Advance or other 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 withholding 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 Lender shall 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 Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”); provided that no Bank shall have any obligation Rights to disclose approve any amendment, modification, or waiver of any Loan Document, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 the 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 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 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 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. NBPLP CREDIT AGREEMENT
(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 the Participant Register (including the identity of extent any participant Principal Debt owed to such assigning Lender is evidenced by a Note or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan DocumentNotes) to any Person except 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 extent that any Principal Debt owed to such disclosure assigning Lender is necessary evidenced by a Note or Notes) to establish that its trustee in support of its obligations to its trustee. No such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of assignment shall release the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in assigning Lender from its capacity as Agent) shall have no responsibility for maintaining a Participant Registerobligations hereunder.
(ig) Company authorizes each Bank to disclose to Any Lender may furnish any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company Loan Parties in the possession of such Lender from time to time to Eligible Assignees and its Subsidiaries which has been delivered Participants (including prospective Eligible Assignees and Participants), subject to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms provisions of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofSECTION 14.14.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Northern Border Partners Lp)
Successors and Assigns; Assignments and Participations. (a) This Facility A Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) assignments by Borrower are subject to the restrictions of SECTION 7.16, and (ii) except as permitted under this Section, no Facility A Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company of its rights Each Facility A Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights Rights and obligations hereunder under this Facility A Agreement and under the other Facility A Loan DocumentsPapers (including, shall be subject without limitation, all or a portion of its Borrowings, its Notes [to the following terms and conditionsextent such Facility A Principal Debt owed to such Facility A Lender is evidenced by Notes]); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of to an Eligible Assignee;
(xii) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest except in the Revolving Credit case of an assignment to another Facility A Lender or an AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 63 69 assignment of all of a Facility A Lender's Rights and obligations under this Facility A Agreement and the other Facility A Loan Papers, any such partial assignment (and participations when aggregated with the amounts of any concurrent assignments under Facility B and/or the 364-Day Facility by the assigning Lender to the same assignee) shall be in any outstanding Letters of Credit); provided however thatan amount at least equal to $10,000,000, after giving effect to such assignment, but in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate an assigned interest in any of Facility A, Facility B, or the Revolving Credit (and participations in any outstanding Letters of Credit) 364-Day Facility be less than $5,000,000; and1,000,000 (except in the case of an assignment of all of such Facility A Lenders' interest in any such facility);
(iiiii) each such assignment by a Facility A Lender shall be of a constant, and not varying, percentage of all of its Rights and obligations under this Facility A Agreement and the Notes (to the extent the Facility A Principal Debt owed to the assigning Facility A Lender is evidenced by any Notes);
(iv) 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;
(v) the parties to any such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)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 fee of $3,500;
(vi) no Swing Line Lender may assign any portion of its obligations under the Swing Line Subfacility and recordation fee in its related portion of the amountRevolving Commitment, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the unless such assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank is being made in connection with the interest so assignedsale of all such Swing Line Lender's Rights and interests under the Facility A Loan Papers. From Upon execution, delivery, and after the effective date acceptance of each such Assignment Agreement that satisfies the requirements of this Section 13.8and Acceptance Agreement, the assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of such assignment, have the assigned interest) the rights obligations, Rights, and obligations benefits of a Bank Facility A Lender under this Agreement and the other Facility A Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment) Papers and the assigning Bank shall 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 Agreement 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 other 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 3.20(D).
(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 Documents 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 AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 64 70 with this SECTION 11.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Facility A Committed Sums of the assigned interest). assignor and assignee.
(d) Upon requestits receipt of an Assignment and Acceptance Agreement executed by the parties thereto, Company shall execute and deliver together with any Notes subject to such assignment (to the Agent, new Note(s) payable to extent the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned Facility A Principal Debt owed to the assigning Bank pursuant to such Assignment Agreement, Facility A Lender is evidenced by any Notes) and with respect to the portion payment 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 of the Revolving Commitment retained by such Bank hereunder. The Agentprocessing fee, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to Administrative Agent shall, if such assignment and shall not effect or constitute a novation or discharge acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the Indebtedness evidenced by such prior Note, information contained therein in the Register 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 (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company and the Agent acknowledge that Each Facility A Lender may sell participations to one or more Persons (each a "PARTICIPANT") in all or a portion of the Banks may at any time and from time to timeits Rights, subject to the terms and conditions hereofobligations, grant participations in such Bank’s rights or Rights and obligations hereunder under this Facility A Agreement and related Facility A Loan Papers (including all or a portion of its Committed Sum or its portion of Borrowings advanced under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or SubsidiariesFacility A); provided provided, however, that (i) such Bank’s Facility A Lender's obligations under this Facility A Agreement shall remain unchanged, ; (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and ; (iii) the CompanyParticipant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15, the Administrative Agent3.19, and 3.20 (so long as Borrower shall not be obligated to pay any amount in excess of the Banks amount that would be due to such Facility A Lender under such Sections as though no participations have been made) and the right of set-off contained in SECTION 3.13; (iv) Borrower shall continue to deal solely and directly with such Bank Facility A Lender in connection with such Bank’s rights Facility A Lender's Rights and obligations under this Agreement, Facility A Agreement and any participation permitted hereunder shall comply with all applicable laws the other Facility A Loan Papers and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank Facility A Lender shall retain the sole right and responsibility Right to enforce the obligations of the Company Borrower relating to Borrowings under Facility A and its Subsidiaries relating Notes (to the Notes extent the Facility A Principal Debt owed to such Facility A Lender is evidenced by Notes) and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification modification, or waiver of any provision of this Agreement without (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Facility A Principal Debt, extending any scheduled principal payment date or date fixed for the payment of interest on the Facility A Principal Debt, or extending such Facility A Lender's Committed Sum); and (v) such Facility A Lender shall be solely responsible for any withholding 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. Except in the case of the sale of a participating interest to another Facility A 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 participant transferring Facility A Lender (unless such participant is an Affiliate of such Bank), except for those matters requiring the which consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall will not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (dunreasonably withheld) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have has been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15obtained.
(f) Any Bank Notwithstanding any other provision set forth in this Facility A Agreement, any Facility A Lender may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement Borrowings and its Notes (including its to the extent the Facility A Principal Debt owed to such Facility A Lender is evidenced by any Notes, if any) to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such Bank the assigning Facility A Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
hereunder. AMENDED AND RESTATED FACILITY A REVOLVING CREDIT AGREEMENT 65 71 (g) The Agent shall (acting as non fiduciary agent for Any Facility A Lender may furnish any information concerning the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (Consolidated Companies in the “Register”) for the recordation of the names and addresses of the Banks, the Percentages possession of such Banks and the principal amount of each type of Advance owing to each such Bank Facility A Lender from time to time. The entries in the Register shall be conclusive evidencetime to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), absent manifest errorsubject, and the Companyhowever, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy provisions of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entrySECTION 11.15 hereof.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Facility a Revolving Credit Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Papers without the express written consent of all Lenders, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Notes); PROVIDED, shall be subject to the following terms and conditionsHOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment (including without limitation when aggregated with the right amount of any concurrent assignments by the assigning Lender to receive fees payable hereunder the same assignee under the Revolver/Acquisition Facility and/or under the Third Amended and Restated Credit Agreement dated as of March 25, 1998, among ▇▇▇▇▇▇ Operating Company, CoreStates Bank, N.A., as Administrative Agent, and the lenders now or hereafter party thereto [as the same may hereafter be amended, modified, restated, or supplemented]) shall be in respect 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 constant, and not varying, percentage of all of its Rights and obligations under this Agreement and the period following Notes;
(iv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT F hereto, together with any Notes subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSECTION 4.6.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Agent, Administrative Agent and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company Borrower or any Bank 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 amended (but only to the extent required) by Administrative Agent to reflect the name, address, and respective Committed Sums under the Facility of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with respect to any entry relating Notes subject to such Bank’s Percentages assignment and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company payment of the making processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of any entry EXHIBIT F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register or any change in such entryand (iii) give prompt notice thereof to the parties thereto.
(he) Each Bank that sells a participation shall (acting as non-fiduciary agent for Subject to the Company, solely for purposes provisions of this Section 13.8and 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") maintain participating interests in its portion of the Obligation. In the event of any such sale to a register on which it enters the name and address of each participant Participant, (i) such Lender shall remain a "LENDER" under this Agreement and the principal amounts 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 Principal Debt for all purposes under this Agreement, (v) Borrower and stated interest on) each participant’s interest Administrative Agent shall continue to deal solely and directly with such Lender in each type of Advance or other connection with such Lender's Rights and obligations under the Loan Documents 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 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 Lender shall 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 Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”); provided that no Bank shall have any obligation Rights to disclose all approve any amendment, modification, or any portion of the Participant Register (including the identity waiver of any participant or any information relating to a participant's interest in any commitmentsLoan Paper, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 establish that the Obligation (EXCEPT such commitmentreductions as are contemplated by this Agreement), loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) releases any material Guaranty or all or any substantial portion of the United States Treasury Regulations. The entries 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 Participant Register 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 Lender or Participant) shall be conclusive absent manifest error, and control the vote for all of such Bank shall treat each Person whose name is recorded Lender's portion of the Obligation. Except in the Participant Register as case of the owner sale of such participation for all purposes of this Agreement notwithstanding any notice a participating interest to the contrary. For the avoidance of doubtanother Lender, the Agent 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 (in its capacity as Agentwhich consent will not be unreasonably withheld) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofobtained.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) assignments by Borrower are subject to the restrictions of SECTION 7.16, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights and obligations hereunder and under the other Loan DocumentsCommitted Sum, shall be subject its Borrowings, its Notes [to the following terms and conditionsextent such Principal Debt owed to such Lender is evidenced by Notes]); PROVIDED, HOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the another Lender or an assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights and obligations all of a Bank under this Agreement Lender's Rights and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents Papers, any such partial assignment shall be in an amount at least equal to $10,000,000, unless each of Administrative Agent and, so long as no Default or Potential Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
(iii) 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 (to the extent the Principal Debt owed to the assigning Lender is evidenced by any Notes);
(iv) each such assignment shall exclude Competitive Borrowings, unless the assigning Lender is selling all of its Rights and obligations under the assigned interest). Upon request, Company Loan Papers;
(v) the parties to such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the Agentform of EXHIBIT E hereto, new Note(s) payable together with any Notes subject to such assignment (to the order of extent the assignee in an amount of the Revolving Commitment equal to the amount assigned Principal Debt owed to the assigning Bank pursuant to Lender is evidenced by any Notes) and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, and with respect to the portion of the Indebtedness retained by the assigning Bankassignee thereunder shall be a party hereto and, to the extent applicableof such assignment, new Note(s) payable have the 364-DAY REVOLVING CREDIT AGREEMENT 57 obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Lender shall, to the order extent of such assignment, relinquish its rights (except for indemnity rights arising out of the assigning Bank in an amount equal period prior to assignment) 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 3.20(d).
(c) Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at the office of Administrative Agent referred to in SECTION 11.3 a copy of each Assignment and Acceptance 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 Revolving Commitment retained by such Bank hereunderBorrowings owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The Agent, entries in the Banks and the Company acknowledges and agrees that any such new Note(s) Register shall be given conclusive and binding for all purposes, absent manifest error, and Borrower, Administrative Agent and Lenders may treat each Person whose name is recorded in renewal and replacement 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 11.13, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by 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, together with any Notes issued subject to such assignment (to the extent the Principal Debt owed to the assigning Bank prior to Lender is evidenced by any Notes) and payment of the processing fee, Administrative Agent shall, if such assignment and shall not effect or constitute a novation or discharge acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the Indebtedness evidenced by such prior Note, information contained therein in the Register 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 (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company and the Agent acknowledge that Each Lender may sell participations to one or more Persons (each a "PARTICIPANT") in all or a portion of the Banks may at any time and from time to timeits Rights, subject to the terms and conditions hereofobligations, grant participations in such Bank’s rights or Rights and obligations hereunder under this Agreement and related Loan Papers (including all or a portion of its Committed Sum or its portion of Borrowings advanced under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiariesthis Agreement); provided PROVIDED, HOWEVER, that (i) such Bank’s Lender's obligations under this Agreement shall remain unchanged, ; (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and ; (iii) the CompanyParticipant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15, the Administrative Agent3.19, and 3.20 (SO LONG AS Borrower shall not be obligated to pay any amount in excess of the Banks amount that would be due to such Lender under such Sections as though no participations have been made) and the right of set-off contained in SECTION 3.13; (iv) Borrower shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s rights Lender's Rights and obligations under this Agreement, Agreement and any participation permitted hereunder shall comply with all applicable laws the other Loan Papers and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank Lender shall retain the sole right and responsibility Right to enforce the obligations of the Company Borrower relating to Borrowings under this Agreement and its Subsidiaries relating Notes (to the Notes extent the Principal Debt owed to such Lender is evidenced by Notes) and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification modification, or waiver of any provision of this Agreement without (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Principal Debt, extending any scheduled principal payment date or date fixed for the payment of interest on the Principal Debt, or extending such Lender's Committed Sum); and (v) such Lender shall be solely responsible for any 364-DAY REVOLVING CREDIT AGREEMENT withholding 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. Except in the case of the sale of a 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 participant transferring Lender (unless such participant is an Affiliate of such Bank), except for those matters requiring the which consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall will not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (dunreasonably withheld) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have has been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15obtained.
(f) Any Bank Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement Borrowings and its Notes (including its to the extent the Principal Debt owed to such Lender is evidenced by any Notes, if any) to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such Bank the assigning Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretohereunder.
(g) The Agent shall (acting as non fiduciary agent for Any Lender may furnish any information concerning the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (Consolidated Companies in the “Register”) for the recordation of the names and addresses of the Banks, the Percentages possession of such Banks and the principal amount of each type of Advance owing to each such Bank Lender from time to time. The entries in the Register shall be conclusive evidencetime to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), absent manifest errorsubject, and the Companyhowever, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy provisions of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entrySECTION 11.15 hereof.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Worldcom Inc/ga//)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns.
assigns permitted hereby (bincluding any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) The foregoing shall not authorize no Borrower may assign or otherwise transfer any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) obliga- tions hereunder without the prior written approval consent of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section each Lender (and any other 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 con- sent 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 be null and void).have consented to such assignment;
(dB) Each the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment by 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 its rights and obligations hereunder and under the other a Term Loan Documentsor for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following terms and additional conditions:
(iA) 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 Bor- rower 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 in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other required if an Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andis continuing;
(iiB) 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 con- strued 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 any each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)Agreement, together with a processing and recordation fee in of $3,500 payable by the amountAssignee unless such parties otherwise agree;
(D) the assignee, if anyit shall not be a Lender, required as set forth shall deliver to the Administrative Agent an Ad- ministrative Questionnaire in which the Assignment Agreement. Until assignee designates one or more credit contacts to whom all ▇▇▇▇▇- ▇▇▇▇-level information (which may contain material non-public information about the Assignment Agreement becomes effective Parent Borrower and its affiliates and its Related Parties or their respective securities) will be made available and who may re- ceive such information in accordance with its termsthe Assignee’s compliance procedures and applicable laws, in- cluding 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 Agent has confirmed such Sponsor Affiliated Lender shall further acknowledge and agree that to the assignment satisfies extent it votes in contravention of the requirements terms of this Section 13.812.06, the Company it shall consent and the Agent shall be entitled not otherwise object to continue to deal solely being designated as having voted “not in good faith” under subsections (c) and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date (e) of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent 1126 of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon requestBankruptcy Code , Company shall execute and deliver to the Agentor, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and with respect to the portion of the Indebtedness retained by the assigning Bankalternatively, to the extent applicablethat the foregoing non-voting desig- nation is deemed unenforceable for any reason, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) each Sponsor Affiliated Lender shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations vote in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, proceed- ings in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable manner as directed by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; providedMajority Lenders, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that any plan of reorganization proposes to treat the Obligations held by such disclosure Sponsor Affiliated Lender in a manner that is necessary less favorable in any material respect to establish such Sponsor Affiliated Lender than the proposed treatment of similar Obliga- tions 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 commitmentas- signment, loanto all other assignments with all Sponsor Affiliated Lenders, letter the aggregate principal amount of credit or other obligation is in registered form under Section 5f.103-1(c) all Loans and Commitments then held by all Sponsor Affiliated Lenders shall not exceed 20% of the United States Treasury Regulations. The entries in aggre- gate unpaid principal amount of the Participant Register Term Loans then outstanding, (2) no Revolving Credit Loans or Re- volving Credit Commitments shall be conclusive absent manifest errorassigned to any Sponsor Affiliated Lender, (3) no proceeds of Re- volving Credit Loans shall be used, directly or indirectly, to consummate such assignment, (4) such Spon- sor Affiliated Lender (other than an Affiliated Debt Fund) will not receive information provided solely to Lenders and such Bank shall treat each Person whose name is recorded will not be permitted to attend or participate in the Participant Register as the owner of such participation (or receive any notice of) Lender meetings or conference calls and (5) for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance amendment, waiver or modification of doubt, the Agent any Loan Document that does not in each case adversely affect such Sponsor Affiliated Lender (in its capacity as Agenta Lender) shall in any material respect as compared to other Lenders, such Sponsor Affiliated Lender will be deemed to have no responsibility for maintaining 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 Participant Register.Lender; and
(iG) Company authorizes each Bank notwithstanding anything herein to disclose to any prospective assignee or participant which has satisfied the requirements hereundercontrary, any and all financial information in such Bank’s possession concerning the Company Holdings and its Subsidiaries which has been delivered to such Bank may not be assignees of any Loans or Commitments other than Term Loans pursuant to this Agreement, provided that each Section 2.08(j) and Term Loans acquired by Holdings or its Subsidiaries under such prospective assignee or participant Section shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofimmediately cancelled.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Papers without the express written consent of all Lenders, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Notes); PROVIDED, shall be subject to the following terms and conditionsHOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment (including without limitation when aggregated with the right amount of any concurrent assignments by the assigning Lender to receive fees payable hereunder the same assignee under the 364-Day Facility and/or under the Third Amended and Restated Credit Agreement dated as of March 25, 1998, among ▇▇▇▇▇▇ Operating Company, CoreStates Bank, N.A., as Administrative Agent, and the lenders now or hereafter party thereto [as the same may hereafter be amended, modified, restated, or supplemented]) shall be in respect 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 constant, and not varying, percentage of all of its Rights and obligations under this Agreement and the period following Notes;
(iv) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT F hereto, together with any Notes subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSECTION 4.6.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Agent, Administrative Agent and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company Borrower or any Bank 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 amended (but only 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 respect to any entry relating Notes subject to such Bank’s Percentages assignment and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company payment of the making processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of any entry EXHIBIT F hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register or any change in such entryand (iii) give prompt notice thereof to the parties thereto.
(he) Each Bank that sells a participation shall (acting as non-fiduciary agent for Subject to the Company, solely for purposes provisions of this Section 13.8and 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") maintain participating interests in its portion of the Obligation. In the event of any such sale to a register on which it enters the name and address of each participant Participant, (i) such Lender shall remain a "LENDER" under this Agreement and the principal amounts 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 Principal Debt for all purposes under this Agreement, (v) Borrower and stated interest on) each participant’s interest Administrative Agent shall continue to deal solely and directly with such Lender in each type of Advance or other connection with such Lender's Rights and obligations under the Loan Documents 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 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 Lender shall 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 Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”); provided that no Bank shall have any obligation Rights to disclose all approve any amendment, modification, or any portion of the Participant Register (including the identity waiver of any participant or any information relating to a participant's interest in any commitmentsLoan Paper, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 establish that the Obligation (EXCEPT such commitmentreductions as are contemplated by this Agreement), loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) releases any material Guaranty or all or any substantial portion of the United States Treasury Regulations. The entries 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 Participant Register 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 Lender or Participant) shall be conclusive absent manifest error, and control the vote for all of such Bank shall treat each Person whose name is recorded Lender's portion of the Obligation. Except in the Participant Register as case of the owner sale of such participation for all purposes of this Agreement notwithstanding any notice a participating interest to the contrary. For the avoidance of doubtanother Lender, the Agent 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 (in its capacity as Agentwhich consent will not be unreasonably withheld) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofobtained.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dobson Communications Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Papers without the express written consent of all Lenders, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights and obligations hereunder and under the other Loan DocumentsBorrowings, shall be subject its Notes [to the following terms and conditionsextent such Principal Debt owed to such Lender is evidenced by Notes]); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment shall be in an amount at least equal to $10,000,000;
(including without limitation iii) 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 right Notes (to receive fees payable hereunder the extent the Principal Debt owed to the assigning Lender is evidenced by any Notes);
(iv) each such assignment shall exclude Competitive Borrowings, unless the assigning Lender is selling all of its Rights and obligations under the Loan Papers; and
(v) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in respect the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the period following extent the Principal Debt owed to the assigning Lender is evidenced by any Notes) and a processing fee of $3,500 (unless otherwise specified by Administrative Agent). Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement 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 other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSECTION 10.9.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 11.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment, and principal amount of the Borrowings owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Agent, Administrative Agent and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company Borrower or any Bank 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 amended (but only to the extent required) by 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, together with respect to any entry relating Notes subject to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice assignment (to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice extent the Principal Debt owed to the Company assigning Lender is evidenced by any Notes) and payment of the making processing fee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of any entry EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register or any change in such entryand (iii) give prompt notice thereof to the parties thereto.
(he) Each Bank that sells 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 participation "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, (acting as non-fiduciary agent ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible for the Companyperformance thereof, (iv) such Lender shall remain the holder of its share of the Principal Debt for all purposes under this Agreement, (v) Borrower and Administrative Agent shall continue to deal solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant directly with such Lender in connection with such Lender's Rights and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents Papers, and (the “Participant Register”); provided that no Bank vi) such Lender shall have be solely responsible for any obligation to disclose all withholding taxes or any portion of the Participant Register (including the identity of any participant filing or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.reporting
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) assignments by Borrower are subject to the restrictions of SECTION 7.16, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights and obligations hereunder and under the other Loan DocumentsCommitted Sum, shall be subject its Borrowings, its Notes [to the following terms extent such Principal Debt owed to such Lender is evidenced by Notes], and conditionsparticipations in LCs at the time owing to such Lender); PROVIDED, HOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the another Lender or an assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights and obligations all of a Bank under this Agreement Lender's Rights and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents Papers, any such partial assignment shall be in an amount at least equal to $10,000,000, unless each of Administrative Agent and, so long as no Default or Potential Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
(iii) 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 (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned Principal Debt owed to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness Lender is evidenced by such prior Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such any Notes, Agent shall prepare and distribute to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank Each Lender may at any time sell, transfer or assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any a portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in delegate all or a minimum amount portion of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the extent of the assigned interestLoans, Obligations and/or Collateral) to one or more Persons (a “Transferee”). Upon request, Company ; provided that such Transferee and such assigning Lender shall execute and deliver to Agent for acceptance and recording in the AgentRegister, new Note(sa Lender Addition Agreement, which shall be in form and substance reasonably acceptable to Agent in its Permitted Discretion; provided further that (A) payable to any such assignment shall be in a minimum amount of $2,000,000 or, if less, the order entire Commitment and/or Loans of such Lender, and (B) so long as no Event of Default has occurred and is continuing and CapitalSource Finance LLC (“CapitalSource”) has not previously resigned as Agent and/or assigned any of its rights in each case during the continuance of Default or Event of Default, CapitalSource shall insure that it shall remain the Agent and its aggregate Commitment and holding of principal amount of outstanding Term Loans shall equal at least 51% of the assignee in an total outstanding amount of the Term Loans and Commitments for the Revolving Commitment equal Facility; provided however that the provisions of Section 13.2(h) of this Agreement shall apply to the amount assigned exclusion of all other provisions of this Agreement, including without limitation any limitation set forth in this Section 13.2(a), and in the event of any conflict between the provisions of this Section 13.2(a) and the provisions of Section 13.2(h), the provisions of Section 13.2(h) shall control. Without limiting the generality of the foregoing, there shall be no limitation or restriction on CapitalSource’s or any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation to any Affiliate of CapitalSource or such Lender or to any funding or financing source of CapitalSource, of such Lender or of any of their respective Affiliates. Upon such execution, delivery, acceptance and recording, from and after the assigning Bank effective date determined pursuant to such Assignment Lender Addition Agreement, and with respect to (i) the portion of the Indebtedness retained by the assigning BankTransferee thereunder shall be a party hereto and, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations provided in such Bank’s rights Lender Addition Agreement, shall have the same rights, benefits and obligations hereunder and under the other Loan Documents to any Person (other than as it would if it were a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchangedLender hereunder, (ii) such Bank the assigning Lender shall remain solely responsible be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof, as the case may be, to the other parties hereto for extent that such obligations shall have been expressly assumed by the performance Transferee pursuant to such Lender Addition Agreement (and, in the case of such obligations, and (iii) a Lender Addition Agreement covering all or the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bankremaining portion of an assigning Lender’s rights and obligations under this Agreement, and any participation permitted hereunder such assigning Lender shall comply with all applicable laws and cease to be a party hereto but shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may nevertheless continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank Sections 13.4 and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.1513.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Firearms Training Systems Inc)
Successors and Assigns; Assignments and Participations. (a) This The provisions of this Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns.
(b) The foregoing shall assigns permitted hereby, except that Borrower may not authorize assign or otherwise transfer any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) obligations hereunder without the prior written approval consent of the Banks.
(c) No Bank each Lender and no Lender may at any time assign or grant participations in such Bank’s otherwise transfer any of its rights and or obligations hereunder and under the other Loan Documents except (i) by way of assignment to any an Eligible Assignee in accordance with clause (d) the provisions of this SectionSection 13.13(b), (ii) by way of a participation in accordance with the provisions of clause (e) of this Section 13.13(d), or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause Section 13.13(f). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (fother than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 13.13(d) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void)Agreement.
(db) Each assignment by a Bank of Any Lender may at any time assign to one or more Eligible Assignees all or any a portion of its rights and obligations hereunder under this Agreement (including all or a portion of its Commitment and under outstanding Borrowings (including for purposes of this Section 13.13(b) participations in L/C Obligations) at the other Loan Documents, shall be subject time owing to the following terms and conditions:
it); provided that: (i) each such except in the case of an assignment shall be in a minimum of the entire remaining amount of the lesser assigning Lender’s Commitment and outstanding Borrowings and participations in Unreimbursed Amounts at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (xas defined in Section 13.13(g)) Five Million Dollars with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Borrowings and participations in Unreimbursed Amounts outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000) 5,000,000 or a whole multiple of $500,000 in excess thereof, and after such lesser amount as the assignment, no Lender shall hold a Commitment of less than $5,000,000 unless each of Administrative Agent and, provided so long as no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten is continuing, Borrower otherwise consents (10each such consent not to be unreasonably withheld or delayed); (ii) days, Company each partial assignment shall agree be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Borrowings or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent (which approval shall not be unreasonably withheld) unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(iiiv) the parties to any each assignment shall execute and deliver to Administrative Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)and Assumption, together with a processing and recordation fee in the amountof $3,500. Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 13.13(c), if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From from and after the effective date of specified in each Assignment Agreement that satisfies the requirements of this Section 13.8and Assumption, the assignee Eligible Assignee thereunder shall be deemed to be a party to this AgreementAgreement and, such assignee shall have (to the extent of the interest assigned interest) by such Assignment and Assumption, have the rights and obligations of a Bank 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) Agreement, and the assigning Bank shall relinquish its rights 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 the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 Assumption covering all of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such BankLender’s rights and obligations under this Agreement, and any participation permitted hereunder such Lender shall comply with all applicable laws and cease to be a party hereto but shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this SectionSections 4.1, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation4.5, and may not proceed directly against the Company or any of its Subsidiaries; and
4.6 (iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages facts and the principal amounts owing to such Bank) upon reasonable notice circumstances occurring prior to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.effective date of
Appears in 1 contract
Sources: Credit Agreement (Centex Corp)
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, EXCEPT THAT (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its rights, duties or obligations under any Loan Paper without the express written consent of all Lenders, and (ii) EXCEPT as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company of its rights Each Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights and obligations hereunder under this Agreement and under the other Loan DocumentsPapers (including, shall be subject to without limitation, all or any part of its portion of the following terms Advances and conditionsits Note); PROVIDED, HOWEVER, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) 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 and the other Loan Papers, any such partial assignment (when aggregated with the amounts of any concurrent assignments by the assigning Lender to the same assignee under either or both of (A) the Revolving Credit agreement dated as of March 25, 1998, among operations, NationsBank of Texas, N.A., as "ADMINISTRATIVE AGENT," and lenders party thereto [as the same may hereafter be amended, modified, restated, or supplemented] and (b) the 364-Day Revolving Credit and Term Loan Agreement dated as of March 25, 1998, among operations, NationsBank of Texas, N.A., as "ADMINISTRATIVE AGENT," and the lenders party thereto [as the same may hereafter be amended, modified, restated, or supplemented]) shall be in an amount at least equal to $5,000,000;
(iii) 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 note; THIRD AMENDED AND 76 RESTATED CREDIT AGREEMENT
(iv) the parties to any such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit of EXHIBIT G (with appropriate insertions acceptable to Agent)hereto, together with any Note subject to such assignment and a processing and recordation fee in the amountof $3,500. Upon execution, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its termsdelivery, and Agent has confirmed that the assignment satisfies the requirements acceptance of this Section 13.8, the Company such Assignment and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8Acceptance Agreement, the assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of such assignment, have the assigned interest) the rights obligations, rights, and obligations benefits of a Bank 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) Papers and the assigning Bank shall 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 Agreement Section, but only upon the request of the assignor or assignee made through Administrative Agent, Borrower shall issue the appropriate Note to the assignor and the other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Borrower and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee BankSECTION 4.6(d), taking into account such assignment.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in SECTION 14.8 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks Lenders and the Commitment, and principal amount of the Loan owing to, each type of Advance owing to each such Bank Lender from time to timetime (the "REGISTER"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the CompanyBorrower, the Administrative Agent, and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company Borrower or any Bank (but only with respect Lender at any reasonable time and from time to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) time upon reasonable notice prior notice. Upon the consummation of any assignment in accordance with this SECTION 14.16, SCHEDULE 2.1 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to respective percentage interest in the Company Commitment of the making of any entry in the Register or any change in such entryassignor and assignee.
(hd) Each Bank that sells a participation shall Upon its receipt of an Assignment and Acceptance Agreement executed by the parties thereto, together with any Note 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 G hereto, (acting as non-fiduciary agent for i) accept such Assignment and Acceptance Agreement, (ii) record the Companyinformation contained therein in the Register, solely for purposes and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section 13.8and 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") maintain participating interests in its portion of the Obligation. In the event of any such sale to a register on which it enters the name and address of each participant Participant, (i) such Lender shall remain a "LENDER" under this Agreement and the principal amounts 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 Loan for THIRD AMENDED AND 77 RESTATED CREDIT AGREEMENT all purposes under this Agreement, (v) Borrower and stated interest on) each participant’s interest Administrative Agent shall continue to deal solely and directly with such Lender in each type of Advance or other connection with such Lender's rights and obligations under the Loan Documents 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 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 Lender shall 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 Lender under SECTION 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant Register”); provided that no Bank shall have any obligation rights to disclose all approve any amendment, modification, or any portion of the Participant Register (including the identity waiver of any participant or any information relating to a participant's interest in any commitmentsLoan Paper, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 establish that the Obligation (EXCEPT such commitmentreductions as are contemplated by this Agreement), loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) releases any material Guaranty or all or any substantial portion of the United States Treasury Regulations. The entries 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 Participant Register 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 Lender or Participant) shall be conclusive absent manifest error, and control the vote for all of such Bank shall treat each Person whose name is recorded Lender's portion of the Obligation. Except in the Participant Register as case of the owner sale of such participation for all purposes of this Agreement notwithstanding any notice a participating interest to the contrary. For the avoidance of doubtanother Lender, the Agent 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 (in its capacity as Agentwhich consent will not be unreasonably withheld) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofobtained.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of Holdings, the Company and Company, the Banks Lenders, the Administrative Agent, all future holders of the Loans, and their respective successors and assigns, except that neither Holdings nor the Company may assign or transfer any of its rights or obligations under this Agreement (except, in the case of Holdings, as expressly contemplated by Section 7.5(c)) without the prior written consent of each Lender.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunderEach Lender may, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without with the prior written approval consent of the Banks.
Company, the Issuing Lender and the Administrative Agent (c) No Bank may at any time assign or grant participations such consent not to be unreasonably withheld but in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way case of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank Company it shall be deemed 100 reasonable for the Company to withhold its consent if as a result of any assignment (x) the total number of Lenders would be null and voidgreater than 20 or (y) the Company would be required to pay any additional amounts pursuant to Section 2.15 or 2.16).
(d) Each assignment by a Bank of , assign to one or more banks or other entities all or any a portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights and obligations of a Bank under this Agreement and the other Loan Documents (including including, without limitation limitation, all or a portion of its Revolving Credit Commitment and the right Loans owing to receive fees payable hereunder it); provided, however, that (i) in respect the case of each assignment of a Revolving Credit Commitment, except in the case of an assignment of all of a Lender's Revolving Credit Commitment, (x) the amount of the period following Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or such lesser amount as the Company may consent to and (y) after giving effect to each such assignment, the amount of the Revolving Credit Commitment of the assigning Bank Lender shall in no event be less than $5,000,000, and (ii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance and pay to the Administrative Agent a processing and recordation fee of $4,000. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). Upon the effectiveness of any Assignment and Acceptance, Schedule 1.1A shall be deemed amended to reflect the identities and Revolving Credit Commitments of the Lenders after giving effect thereto.
(c) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company or any other Loan Party or the performance or observance by the Company or any other Loan Party of any of its obligations under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or 101 any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (v) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto; and (vi) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, on behalf of the Company, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents (Documents, notwithstanding any notice to the extent contrary. Any assignment of the assigned interest). Upon request, Company any Loan or other obligation hereunder shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and be effective only upon appropriate entries with respect to thereto being made in the portion of the Indebtedness retained Register. The Register shall be available for inspection by the assigning Bank, Company or any Lender at any reasonable time and from time to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank time upon reasonable prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentnotice.
(e) The Company Upon its receipt of an Assignment and Acceptance accepted by an assigning Lender and an assignee, the Administrative Agent acknowledge that each 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 Banks may at any time information contained therein in the Register and from time to time, subject (iii) give prompt notice thereof to the terms and conditions hereofCompany.
(f) Each Lender may sell participations to one or more banks or other entities (each, grant participations a "Participant") in such Bank’s all or a portion of its rights and obligations hereunder under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitment and under the other Loan Documents Loans owing to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiariesit); provided provided, however, that (i) such Bank’s Lender's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment to the Company hereunder) shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) for purposes of Section 2.16, such Lender shall continue to be treated as if it had not sold any such participation, such that no Participant shall have any right to any indemnity or additional payment under such Section, and such Lender shall be entitled to receive additional payments pursuant to such Section calculated on the assumption that it had not sold any such participation, (iv) the Company, the Administrative Agent, Agent and the Banks other Lenders shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s Lender's rights and obligations under this Agreement, Agreement and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(iv) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding no Participant under any such participation;
(ii) a participant participation shall not reassign or transfer, or grant have any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification amendment or waiver of any provision of this Agreement without any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, in each case to the extent subject to such participation, or postpone the date of the participant (unless final maturity of, or any date fixed for any payment of interest on, the Loans, in each case to the extent subject to such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder)participation. Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and agrees that each such Participant shall, to the extent provided in its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the rights and benefits of Article 11 of this Agreement under Sections 2.14 and 2.16 and all rights to, or rights to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Sectionrequest, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights information under this Agreement (including with respect to its Notesparticipating interest, in each case as if any) to secure obligations such Participant were a Lender and in each case as with effect as from the date of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any effectiveness of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretothe applicable participation.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank Lender to disclose to any Participant or assignee (each, a "Transferee") and any prospective assignee or participant which has satisfied the requirements hereunder, Transferee any and all financial information in such Bank’s Lender's possession concerning the Company and its Subsidiaries Affiliates which has been delivered to such Bank Lender by or on behalf of the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Company in connection with such Lender's credit evaluation of the Company and its Affiliates prior to becoming a party to this Agreement; provided, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with that, unless the terms of Section 13.13 hereof or Administrative Agent and the Company shall otherwise agree agree, prior to be bound by any such disclosure such Transferee shall have executed a Confidentiality Letter in the terms thereofform of Exhibit L.
(h) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with applicable law. In order to facilitate such pledge or assignment, the Company hereby agrees that, upon request of any Lender at any time and from time to time, the Company shall provide to such Lender, at the Company's own expense, a promissory note, in form and substance reasonably satisfactory to the Company, evidencing the Loans so pledged or assigned Lender.
(ji) Nothing in this AgreementIf, after the date that any Lender becomes a Lender, the Notes long- term certificate of deposit rating of such Lender shall be downgraded by both Standard & Poor's Ratings Services ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") (or, in the case of any Lender which is not so rated by both S&P and Moody's on the date on which it becomes a Lender, by ▇▇▇▇▇▇▇▇'▇ BankWatch and, if applicable, S&P or Moody's), and as a result of such downgrade such Lender shall be rated below BBB- by S&P and below Baa3 by Moody's, or the other Loan Documentsequivalent (or, expressed in the case of any Lender which is not so rated by both S&P and Moody's on the date on which it becomes a Lender, below C by ▇▇▇▇▇▇▇▇'▇ BankWatch and, if applicable, below BBB- by S&P or impliedbelow Baa3 by Moody's, is intended or the equivalent), then the Issuing Lender shall have the right, but not the obligation, at its own expense, upon notice to such Lender and the Administrative Agent, to replace (or to request that the Company use its reasonable efforts to replace) such Lender with an assignee (in accordance with and subject to the restrictions contained in Section 11.6(b)), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in Section 11.6(b)) all its interests, rights and obligations hereunder to such assignee; provided, that (i) no such assignment shall confer conflict with any Requirement of Law of any Governmental Authority and (ii) the Issuing Lender or such assignee, as the case may be, shall pay to such Lender in immediately available funds on any Person other than the respective parties hereto date of such assignment the principal of and thereto and their successors and assignees and participants permitted interest accrued to the date of payment of the Loans made by such Lender hereunder and thereunder any benefit all other amounts accrued for such Lender's account or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documentsowed to it hereunder.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) assignments by Borrower are subject to the restrictions of SECTION 7.16, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights and obligations hereunder and under the other Loan DocumentsBorrowings, shall be subject its Notes [to the following terms and conditionsextent such Principal Debt owed to such Lender is evidenced by Notes]); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment (including without limitation when aggregated with the right amounts of any concurrent assignments under Facility A by the assigning Lender to receive fees payable hereunder the same assignee) shall be in respect an amount at least equal to $10,000,000, but in no event shall an assigned interest in either Facility A or the 364- Day Facility be less than $1,000,000 (except in case of an assignment of all of such 364-Day Facility Lender's interest in any such facility);
(iii) 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 (to the extent the Principal Debt owed to the assigning Lender is evidenced by any Notes); provided, that notwithstanding the foregoing, assignment of any Rights and obligations of any Swing Line Lender under the Swing Line Subfacility shall be governed by SECTION 11.13(B)(VI);
(iv) each such assignment shall exclude Competitive Borrowings, unless the assigning Lender is selling all of its Rights and obligations under the Loan Papers;
(v) the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in the form of EXHIBIT E hereto, together with any Notes subject to such assignment (to the extent the Principal Debt owed to the assigning Lender is evidenced by any Notes) and a processing fee of $3,500;
(vi) no Swing Line Lender may assign any portion of its obligations under the Swing Line Subfacility and its related portion of the period following Commitment, unless such assignment is being made in connection with the sale of all such Swing Line Lender's Rights and interests under the Loan Papers. AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement 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 other 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 3.20(d).
(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 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 Documents 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 11.13, SCHEDULE 2.1 AND SCHEDULE 2.2 shall automatically be deemed amended (to the extent required) by Administrative Agent to reflect the name, address, and respective Committed Sums of the assigned interest). assignor and assignee.
(d) Upon requestits receipt of an Assignment and Acceptance Agreement executed by the parties thereto, Company shall execute and deliver together with any Notes subject to such assignment (to the Agent, new Note(s) payable to extent the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned Principal Debt owed to the assigning Bank pursuant to such Assignment Agreement, Lender is evidenced by any Notes) and with respect to the portion payment 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 of the Revolving Commitment retained by such Bank hereunder. The Agentprocessing fee, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to Administrative Agent shall, if such assignment and shall not effect or constitute a novation or discharge acceptance has been completed and is in substantially the form of EXHIBIT E hereto, (i) accept such Assignment and Acceptance Agreement, (ii) record the Indebtedness evidenced by such prior Note, information contained therein in the Register 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 (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company and the Agent acknowledge that Each Lender may sell participations to one or more Persons (each a "PARTICIPANT") in all or a portion of the Banks may at any time and from time to timeits Rights, subject to the terms and conditions hereofobligations, grant participations in such Bank’s rights or Rights and obligations hereunder under this Agreement and related Loan Papers (including all or a portion of its Committed Sum or its portion of Borrowings advanced under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiariesthis Agreement); provided provided, however, that (i) such Bank’s Lender's obligations under this Agreement shall remain unchanged, ; (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and ; (iii) the CompanyParticipant shall be entitled to the benefit of the yield protection provisions contained in SECTIONS 3.15, the Administrative Agent3.19, and 3.20 (so long as Borrower shall not be obligated to pay any amount in excess of the Banks amount that would be due to such Lender under such Sections as though no participations have been made) and the right of set-off contained in SECTION 3.13; (iv) Borrower shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s rights Lender's Rights and obligations under this Agreement, Agreement and any participation permitted hereunder shall comply with all applicable laws the other Loan Papers and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank Lender shall retain the sole right and responsibility Right to enforce the obligations of the Company Borrower relating to Borrowings under this Agreement and its Subsidiaries relating Notes (to the Notes extent the Principal Debt owed to such Lender is evidenced by Notes) and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification modification, or waiver of any provision of this Agreement without (other than amendments, modifications, or waivers decreasing the amount of principal of or the rate at which interest is payable on the Principal Debt, extending any scheduled principal payment date or date fixed for the payment of interest on the Principal Debt, or extending such Lender's Committed Sum); and (v) such Lender shall be solely responsible for any withholding 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 AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT representatives harmless against the same. Except in the case of the sale of a 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 participant transferring Lender (unless such participant is an Affiliate of such Bank), except for those matters requiring the which consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall will not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (dunreasonably withheld) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have has been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15obtained.
(f) Any Bank Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement Borrowings and its Notes (including its to the extent the Principal Debt owed to such Lender is evidenced by any Notes, if any) to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such Bank the assigning Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretohereunder.
(g) The Agent shall (acting as non fiduciary agent for Any Lender may furnish any information concerning the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (Consolidated Companies in the “Register”) for the recordation of the names and addresses of the Banks, the Percentages possession of such Banks and the principal amount of each type of Advance owing to each such Bank Lender from time to time. The entries in the Register shall be conclusive evidencetime to Eligible Assignees and Participants (including prospective Eligible Assignees and Participants), absent manifest errorsubject, and the Companyhowever, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy provisions of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entrySECTION 11.15 hereof.
(h) Each Notwithstanding anything to the contrary contained herein, any Lender may grant (a "GRANTING BANK") to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Borrowing that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of such Granting Bank would otherwise be obligated to make to Borrower pursuant to this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”)Agreement; provided that no Bank (i) nothing herein shall have constitute a commitment by any obligation SPC to disclose make any Borrowing, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any portion part of such Borrowing, Granting Bank shall be obligated to make such Borrowing pursuant to the terms hereof, (iii) such Granting Bank's obligations under this Agreement shall remain unchanged, and (iv) such Granting Bank shall remain solely responsible to the other parties hereto for the performance of obligations hereunder. The making of a Borrowing by an SPC hereunder shall utilize the Committed Sum of Granting Bank to the same extent, and as if, such Borrowing were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the Participant Register foregoing, each party hereto hereby agrees (including which agreement shall survive the identity 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 participant SPC, it will not institute against, or join any information relating to a participant's interest other Person in instituting against, such SPC any commitmentsbankruptcy, loansreorganization, letters of credit arrangement, insolvency or its other obligations liquidation proceedings under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) laws of the United States Treasury Regulationsor any state thereof. The entries in the Participant Register shall be conclusive absent manifest errorIn addition, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice anything to the contrary. For the avoidance of doubtcontrary contained in this paragraph, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
any SPC may (i) Company authorizes each without paying any processing fee therefor, assign all or a portion of its interests in any Borrowing to the Granting Bank to disclose (with notice to, but without the prior written consent of Borrower and Administrative Agent) or to any prospective assignee financial institutions (with notice to and the prior written consent of Borrower and Administrative Agent), in each case providing liquidity and/or credit support to or participant which has satisfied for the requirements hereunderaccount of such SPC to support the funding or maintenance of Borrowing and (ii) disclose on a confidential basis any non-public information relating to its Borrowing to any rating agency, commercial paper dealer or provider of any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered surety, guarantee or credit or liquidity enhancement to such Bank pursuant SPC, subject to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms provisions of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofSECTION 11.15 hereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Mci Worldcom Inc)
Successors and Assigns; Assignments and Participations. (a) This Whenever any of the parties to this Agreement is referred to in this Agreement, such reference shall be binding upon deemed to include the successors and shall inure to the benefit assigns of such party; provided, however, that neither of the Company Borrowers may assign or transfer any of its rights or obligations under this Agreement or under the Revolving Notes without the prior written consent of all of the Lenders and the Banks and their respective successors and assignsAdministrative Agent.
(b) The foregoing From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its Commitment and/or Revolving Loans; provided, however, that (i) such assignment, if not to a Lender or an Affiliate of the assigning Lender, shall be consented to by Trendwest at all times other than during the existence of a Default or Event of Default and by the Administrative Agent, Issuing Lender, and the Australian Lender (which approval of Trendwest shall not authorize be unreasonably withheld or delayed), (ii) a copy of a duly signed and completed Assignment and Acceptance shall be delivered to the Administrative Agent, (iii) except in the case of an assignment (A) to an Affiliate of the assigning Lender or to another Lender or (B) of the entire remaining Commitment of the assigning Lender, the portion of the Commitment assigned shall not be less than $5,000,000, and (iv) the effective date of any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without as specified in the Assignment and Acceptance, but not earlier than the date that is five Banking Days after the date on which the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the prior written approval sentence, any forms required by Section 11.8 and payment of the Banksrequisite fee described below, the assignee named in the Assignment and Acceptance shall be a Lender for all purposes of this Agreement to the extent of the Assigned Interest (as defined in such Assignment and Acceptance), and the assigning Lender shall be released from any further obligations under this Agreement to the extent of such Assigned Interest. Upon request, the Borrowers shall execute and deliver new or replacement Revolving Notes to the assigning Lender and the assignee Lender to evidence Revolving Loans made by them. The Administrative Agent's consent to any assignment shall not be deemed to constitute any representation or warranty by any Indemnified Person as to any matter. For purposes of this Agreement, each mutual fund that is an Affiliate of a Lender shall be deemed to be a single Eligible Assignee, whether or not such fund is managed by the same fund manager as other mutual funds that are Affiliates of the same Lender.
(c) No Bank may at any time assign or grant participations in After receipt of a completed Assignment and Acceptance, and receipt of an assignment fee of $3,500 from such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee and/or such assigning Lender (including in accordance with clause (d) the case of this Sectionassignments to Affiliates of assigning Lenders), (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject Administrative Agent shall, promptly following the effective date thereof, provide to the restrictions of clause (f) of this Section (Borrowers and any other attempted assignment or transfer by any Bank shall be deemed to be null and void)Lenders a revised Schedule I giving effect thereto.
(d) Each assignment by a Bank Lender may from time to time, without the consent of any other Person, grant participations to one or more other Person (including another Lender) in all or any portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount Ratable Share of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment AgreementLoans and/or Aggregate Commitment; provided, and with respect to the portion of the Indebtedness retained by the assigning Bankhowever, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s Lender's obligations under this Agreement shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto to this Agreement for the performance of such obligations, and (iii) the Companyparticipating banks or other financial institutions shall not be a Lender under this Agreement for any purpose except, if the participation agreement so provides, for the purposes of Sections 2.3 through 2.10 (but only to the extent that the cost of such benefits to the Borrowers does not exceed the cost that the Borrowers would have incurred in respect of such Lender absent the participation) and subject to Sections 10.11 and 11.6, (iv) the Borrowers, the Administrative Agent, Agent and the Banks other Lenders shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s Lender's rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a (v) the participation agreement that incorporates shall not restrict an increase in the following restrictions:
Aggregate Commitment or in the granting Lender's Commitment or Ratable Share, so long as the amount of the participation interest is not increased, and (ivi) such Bank shall remain the consent of the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant participation interest shall not reassign be required for amendments or transferwaivers of provisions of this Agreement; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter that (A) extends the Revolving Credit Termination Date as to such participant or any other date upon which any payment of money is due to such participant, (B) reduces the rate of interest owing to such participant, any fee or any other monetary amount owing to such participant, or grant (C) reduces the amount of any sub-participations installment of principal owing to such participant. Any Lender that sells a participation to any Person that is a "foreign corporation, partnership or trust" within the meaning of the Code shall include in its participation interest hereunder or any part thereof; andagreement with such Person a covenant by such Person that such Person will comply with the provisions of Section 11.8 as if such Person were a Lender and provide that the Administrative Agent and the Borrowers shall be third party beneficiaries of such covenant.
(iiie) such Bank KeyBank National Association shall retain not enter into any agreement with any other Lender pursuant to which the sole right and responsibility former agrees not to enforce the obligations of the Company and its Subsidiaries relating consent to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant RegisterLender.
(i) Company authorizes each Bank Notwithstanding anything to disclose to any prospective assignee or participant which has satisfied the requirements hereundercontrary contained in this Agreement, any Lender (a "Designating Lender") may grant to one or more special purpose funding vehicles (each, an "SPV"), identified as such in writing from time to time by the Designating Lender to the Administrative Agent and Trendwest, the option to provide to the Borrowers all financial information in or any part of any Revolving Loan that such Bank’s possession concerning Designating Lender would otherwise be obligated to make to the Company and its Subsidiaries which has been delivered to such Bank Borrowers pursuant to this Agreement; provided, provided however, that each (A) nothing in this Agreement shall constitute a commitment by any SPV to make any Revolving Loan, (B) if an SPV elects not to exercise such prospective assignee option or participant otherwise fails to provide all or any part of such Revolving Loan, the Designating Lender shall execute a confidentiality agreement consistent with be obligated to make such Revolving Loan pursuant to the terms of Section 13.13 hereof this Agreement, and (C) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment. The making of a Revolving Loan by an SPV shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Revolving Loan were made by such Designating Lender.
(ii) As to any Revolving Loans or portion thereof made by it, each SPV shall have all the rights that a Lender making such Revolving Loans or portion thereof would have had under this Agreement; provided, however, that each SPV shall have granted to its Designating Lender an irrevocable power of attorney, to deliver and receive all communications and notices under this Agreement (and any related documents) and to exercise on such SPV's behalf, all of such SPV's voting rights under this Agreement. No additional Revolving Note shall be required to evidence the Revolving Loans or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Revolving Note as agent for such SPV to the extent of the Revolving Loans or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party to this Agreement hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise agree be liable. In furtherance of the foregoing, each such party hereby agrees (which agreements shall survive the termination of this Agreement) that, prior to be bound by the terms date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof.
(jiv) Nothing In addition, notwithstanding anything to the contrary contained in this Section 11.7(f) or otherwise in this Agreement, any SPV may (A) at any time and without paying any processing fee therefor, assign or participate all or a portion of its interest in any Revolving Loans to the Notes Designating Lender or the other Loan Documents, expressed or implied, is intended to any financial institutions providing liquidity and/or credit support to or shall confer for the account of such SPV to support the funding or maintenance of Revolving Loans and (B) disclose on a confidential basis any Person other than non-public information relating to its Revolving Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancements to such SPV. This Section 11.7(f) may not be amended without the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder written consent of any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan DocumentsDesignating Lender affected thereby.
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Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) Borrower may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Documents without the express written consent of all Lenders, and (ii) except as permitted under this SECTION 13.13, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of including all or any a portion of its rights Commitment, Borrowings, and obligations hereunder and under the other Loan Documentsits Notes); provided, shall be subject to the following terms and conditionshowever, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Documents, any such partial assignment shall be in an amount at least equal to $10,000,000 or an integral multiple of $5,000,000 in excess thereof;
(including without limitation iii) 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 right Notes; and
(iv) the parties to receive fees payable hereunder such assignment shall execute and deliver to Administrative Agent for its acceptance an Assignment and Acceptance Agreement in respect the form of EXHIBIT E, together with any Notes subject to such assignment and a processing fee of $3,500. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the period following assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Documents and the assigning Bank shall 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 Agreement SECTION 13.13(b), the assignor, Administrative Agent, and Borrower shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the other Loan Documents (to assignee. If the extent assignee is not incorporated under the Legal Requirements of the assigned interest). Upon requestUnited States of America or a state thereof, Company then it shall execute 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 deliver a copy of each to Borrower) and a register for the Agent, new Note(s) payable to the order recordation of the assignee in an names and addresses of Lenders and the Commitment, and principal amount of the Revolving Commitment equal Borrowings owing to, each Lender from time to time (the amount assigned to "REGISTER"). The entries in the assigning Bank pursuant to such Assignment AgreementRegister shall be conclusive and binding for all purposes, absent manifest error, and with respect Borrower, Administrative 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 the portion time upon reasonable prior notice.
(d) Upon its receipt of the Indebtedness retained an Assignment and Acceptance Agreement executed by the assigning Bankparties thereto, to the extent applicable, new Note(s) payable to the order of the assigning Bank in an amount equal to the amount of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that together with any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior subject to such assignment and shall not effect or constitute a novation or discharge payment of the Indebtedness evidenced by processing fee, Administrative Agent shall, if such prior NoteAssignment and Acceptance Agreement has been completed and is in substantially the form of EXHIBIT E, (i) accept such Assignment and Acceptance Agreement, (ii) record the information contained therein in the Register, 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 (iii) give prompt notice thereof to Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentparties thereto.
(e) The Company and the Agent acknowledge that each Each Lender may sell participations to one (1) or more Persons in all or a portion of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights its Rights and obligations hereunder under this Agreement including all or a portion of its Commitment, Borrowings, and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries)Notes; provided provided, however, that (i) such Bank’s Lender's obligations under this Agreement shall remain unchanged, (ii) such Bank Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, participant shall be entitled to the Administrative Agentbenefit of the yield protection provisions in SECTION 4 and the right of setoff in SECTION 3.12, and the Banks (iv) Borrower shall continue to deal solely and directly with such Bank Lender in connection with such Bank’s rights Lender's Rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank Lender shall retain the sole right and responsibility to enforce the obligations of the Company Borrower relating to its Borrowings and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any the amendment, modification modification, or waiver of any provision of this Agreement without the consent of the participant (unless such participant is an Affiliate of such Bank)other than amendments, except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basismodifications, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of waivers decreasing the amount of principal of, or the participation transferred by rate at which interest is payable on, such issuing Bank to Borrowings or Notes, extending any scheduled principal payment date or date fixed for the payment of interest on such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a BankBorrowings or Notes, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise or extending or increasing its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15Commitment).
(f) Any Bank Notwithstanding any other provision set forth in this Agreement, any Lender may at any time assign and pledge or assign a security interest in all or any portion of its rights under this Agreement (including Borrowings and its Notes, if any) Notes to secure obligations of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no . No such pledge or assignment shall release such Bank the assigning Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party heretohereunder.
(g) The Agent shall (acting as non fiduciary agent for Any Lender may furnish any information concerning the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (Companies in the “Register”) for the recordation of the names and addresses of the Banks, the Percentages possession of such Banks and the principal amount of each type of Advance owing to each such Bank Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, time to assignees and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register participants (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Documentprospective assignees and participants) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective proposed assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute executed a customary confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereofagreement.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
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Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon Each Loan Document binds and shall inure inures to the benefit of the Company parties thereto, any intended beneficiary thereof, and the Banks and each of their respective successors and permitted assigns. No Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation except as permitted by this SECTION 14.12.
(b) The foregoing Each Lender may assign to one or more financial institutions approved by Borrower and Agent (which approval shall not authorize any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made unreasonably withheld) (or be effectiveeach a "PURCHASER") without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any a portion of its rights and obligations hereunder under this Agreement (including, without limitation, all or a portion of its Loans, its Notes, and under the other Loan Documentsits Commitments); provided, shall be subject to the following terms and conditions:however, that
(i) each 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 minimum amount Lender shall be of a constant, and not varying, percentage of all of its rights and obligations under this Agreement and the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000Notes; and
(iiiii) the parties to any such assignment shall execute and deliver to Agent for its acceptance an Assignment Agreement substantially (as determined by Agent) and Acceptance in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent)of EXHIBIT I, together with any Note subject to such assignment and a processing and recordation fee in the amountof $3,500. Upon execution, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its termsdelivery, and Agent has confirmed that the assignment satisfies the requirements acceptance of this Section 13.8, the Company such Assignment and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8Acceptance, the assignee thereunder shall be deemed to be a party to this Agreementhereto and, such assignee shall have (to the extent of such assignment, have the assigned interest) the rights obligations, rights, and obligations benefits of a Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable Lender hereunder in respect of the period following such assignment) and the assigning Bank shall Lender shall, to the extent of such assignment, relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest)Agreement. Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.the
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Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors (which shall include in the case of any Lender, any Person resulting from a merger or consolidation) and assigns, except that (i) Borrowers may not, except as otherwise permitted under the Loan Documents, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of their Rights, duties, or obligations under any Loan Documents without the express written consent of all the Lenders, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company of its rights Each Lender and each Issuing Lender may assign to one or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any more Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of Assignees all or any a portion of its rights Rights and obligations hereunder and under the other Loan DocumentsDocuments (including all or a portion of its Borrowings and its Notes, shall be subject to the following terms and conditionsextent any Principal Debt owed to such assigning Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participationEligible Assignee;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunderan assignment to another Lender, the participant shall not have any rights under this Agreement or any an Affiliate of the other Loan Documents against the Agentassigning Lender or an Approved Fund of any Lender, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits case of Article 11 an assignment of this Agreement to the same extent as if it were all of a Bank Lender's Rights and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents Documents, any such partial assignment under any Facility shall not be less than the following amounts for the Facility indicated (unless the “Participant Register”); provided that no Bank shall have any obligation to disclose all Administrative Agent and, unless a Default or any portion Potential Default has occurred and is continuing, the Borrowers consent thereto (in their sole discretion) in writing which may be evidenced by their acceptance and execution of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, related Assignment and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Acceptance Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.):
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon and shall inure to the benefit of the Company and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents except (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Section, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, shall be subject to the following terms and conditions:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) dayscontinuing, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; and
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit G (with appropriate insertions acceptable to Agent), together with a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) 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) and the assigning Bank shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents (to the extent of the assigned interest). Upon request, Company shall execute and deliver to the Agent, new Note(s) payable to the order of the assignee in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignment.
(e) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participationSubsidiaries; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreementagreement and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Banks, the Percentages of such Banks and the principal amount of each type of Advance owing to each such Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Company, the Agent, and the Banks shall may 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 available for inspection by the Company or any Bank (but only with respect to any entry relating to such Bank’s Percentages and the principal amounts owing to such Bank) upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to the Company of the making of any entry in the Register or any change in such entry.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company and its Subsidiaries which has been delivered to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof.
(ji) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns; Assignments and Participations. (a) This Agreement shall be binding upon upon, and shall inure to the benefit of the Company and the Banks parties hereto and their respective successors and assigns, except that (i) the Company may not, directly or indirectly, assign or transfer, or attempt to assign or transfer, any of its Rights, duties or obligations under any Loan Papers without the express written consent of all Lenders, and (ii) except as permitted under this Section, no Lender may transfer, pledge, assign, sell any participation in, or otherwise encumber its portion of the Obligation.
(b) The foregoing shall not authorize any assignment by Company Each Lender may assign to one or more Eligible Assignees all or a portion of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or be effective) without the prior written approval of the Banks.
(c) No Bank may at any time assign or grant participations in such Bank’s rights Rights and obligations hereunder under this Agreement and under the other Loan Documents except Papers (i) by way of assignment to any Eligible Assignee in accordance with clause (d) of this Sectionincluding, (ii) by way of a participation in accordance with the provisions of clause (e) of this Section or (iii) by way of a pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section (and any other attempted assignment or transfer by any Bank shall be deemed to be null and void).
(d) Each assignment by a Bank of without limitation, all or any a portion of its rights Borrowings and obligations hereunder and under the other Loan Documentsits Note); provided, shall be subject to the following terms and conditionshowever, that:
(i) each such assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent and, provided no Event of Default under Section 9.1(a) or Section 9.1(j) has occurred and is continuing or any other Event of Default has occurred and has continued for ten (10) days, Company shall agree and (y) the entire remaining amount of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit); provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Bank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) be less than $5,000,000; andan Eligible Assignee;
(ii) the parties to any assignment shall execute and deliver to Agent an Assignment Agreement substantially (as determined by Agent) except in the form attached hereto as Exhibit G (with appropriate insertions acceptable case of an assignment to Agent), together with another Lender or an assignment of all of a processing and recordation fee in the amount, if any, required as set forth in the Assignment Agreement. Until the Assignment Agreement becomes effective in accordance with its terms, and Agent has confirmed that the assignment satisfies the requirements of this Section 13.8, the Company and the Agent shall be entitled to continue to deal solely and directly with the assigning Bank in connection with the interest so assigned. From and after the effective date of each Assignment Agreement that satisfies the requirements of this Section 13.8, the assignee thereunder shall be deemed to be a party to this Agreement, such assignee shall have (to the extent of the assigned interest) the rights Lender's Rights and obligations of a Bank under this Agreement and the other Loan Documents Papers, any such partial assignment shall be in an amount at least equal to $10,000,000 (including without limitation or such lower amount as may be requested by a Lender and agreed to by Administrative Agent, acting in its sole discretion);
(iii) 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 right Notes; and
(iv) the parties to receive fees payable hereunder such assignment shall execute and deliver to the Administrative Agent for its acceptance an Assignment and Acceptance Agreement in respect the form of Exhibit C hereto, together with any Notes subject to such assignment and a processing fee of $3,000. Upon execution, delivery, and acceptance of such Assignment and Acceptance Agreement, the period following assignee thereunder shall be a party hereto and, to the extent of such assignment) , have the obligations, Rights, and benefits of a Lender under the Loan Papers and the assigning Bank shall 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 Agreement Section, the Company shall issue appropriate Notes to the assignor and the other Loan Documents (to assignee, reflecting such Assignment and Acceptance. If the extent assignee is not incorporated under the laws of the assigned interest). Upon requestUnited States of America or a state thereof, Company it shall execute and deliver to the Agent, new Note(s) payable Company and Administrative Agent certification as to the order exemption from deduction or withholding of the assignee Taxes in an amount of the Revolving Commitment equal to the amount assigned to the assigning Bank pursuant to such Assignment Agreement, and accordance 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 of the Revolving Commitment retained by such Bank hereunder. The Agent, the Banks and the Company acknowledges and agrees that any such new Note(s) shall be given in renewal and replacement of the Notes issued to the assigning Bank prior to such assignment and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by such prior 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 Company, and each of the Banks a revised Schedule 1.2 to this Agreement setting forth the applicable new Percentages of the Banks (including the assignee Bank), taking into account such assignmentSection 4.6.
(ec) The Company and the Agent acknowledge that each of the Banks may at any time and from time to time, subject to the terms and conditions hereof, grant participations in such Bank’s rights and obligations hereunder and under the other Loan Documents to any Person (other than a natural person or to Company or any of Company’s Affiliates or Subsidiaries); provided that (i) such Bank’s obligations under this Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Company, the Administrative Agent, and the Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement, and any participation permitted hereunder shall comply with all applicable laws and shall be subject to a participation agreement that incorporates the following restrictions:
(i) such Bank shall remain the holder of its Notes hereunder (if such Notes are issued), notwithstanding any such participation;
(ii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iii) such Bank shall retain the sole right and responsibility to enforce the obligations of the Company and its Subsidiaries relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the 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 (unless such participant is an Affiliate of such Bank), except for those matters requiring the consent of each of the Banks under Section 13.11 (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Bank and the Company, its Subsidiaries, Agent and the other Banks may continue to deal directly with such Bank in connection with such Bank’s rights and duties hereunder). Notwithstanding the foregoing, however, in the case of any participation granted by any Bank hereunder, the participant shall not have any rights under this Agreement or any of the other Loan Documents against the Agent, any other Bank or any of the Company and its Subsidiaries and all amounts payable by the Company and its Subsidiaries hereunder shall be determined as if such Bank had not sold such participation; provided, however that the participant may have rights against such Bank in respect of such participation as may be set forth in the applicable participation agreement. Each such participant shall be entitled to the benefits of Article 11 of this Agreement to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to clause (d) of this Section, provided that no participant shall be entitled to receive any greater amount pursuant to such the provisions of Article 11 than the Bank selling such participation would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such transfer occurred and each such participant shall also be entitled to the benefits of Section 9.7 hereof as though it were a Bank, provided that such participant agrees to be subject to Section 10.3 hereof as though it were a Bank; and provided, further that any participant must exercise its rights through the Bank selling such participation, and may not proceed directly against the Company or any of its Subsidiaries; and
(iv) each participant shall provide the relevant tax form required under Section 13.15.
(f) Any Bank may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including its Notes, if any) to secure obligations of such Bank, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from any of its obligations hereunder or substitute any such pledge or assignee for such Bank as a party hereto.
(g) The Agent shall (acting as non fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain at its principal office address referred to in Section 12.3 a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register (the “Register”) for the recordation recondition of the names and addresses of the BanksLenders and their respective Committed Sums, the Percentages of such Banks and the principal amount of each type of Advance the Borrowings owing to each such Bank Lender from time to timetime (the "Register"). The entries in the Register shall be conclusive evidenceand binding for all purposes, absent manifest error, and the Company, the Agent, Administrative Agent and the Banks shall Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein a Lender hereunder for all purposes of this Agreementthe Loan Papers. The Register shall be available for inspection by the Company or any Bank 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 12.13, Schedule 2.1 shall automatically be deemed amended (but only to the extent required) by 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, together with any 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 C 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 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 Principal Debt for all purposes under this Agreement, (v) the Company 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 withholding taxes or any filing or reporting requirements relating to such participation and shall hold the Company 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 Lender shall 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 the Company shall not be obligated to pay any amount in excess of the amount that would be due to such Lender under Section 4 calculated as though no participations have been made. No Lender shall sell any participating interest under which the Participant shall have any Rights to approve any amendment, modification, or waiver of any Loan Paper, except to the extent such amendment, modification, or waiver extends the due date for payment of any amount in respect of 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 the Obligation (except such reductions as are provided by this Agreement), or releases any guaranty or collateral, if any, for the Obligation (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 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 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) Any Lender may at any time designate not more than one Designated Lender to fund Borrowings on behalf of such Designating Lender subject to the terms of this Section 12.13(f), and the provisions of Sections 12.13(b) and 12.13(e) shall not apply to such designation. No Lender may have more than one Designated Lender at any time. Such designation may occur either by the execution of the signature pages hereof by such Lender and Designated Lender next to the appropriate "Designating Lender" and "Designated Lender" captions, or by execution by such parties of a Designation Agreement subsequent to the date hereof; provided, that any Lender and its Designated Lender executing the signatures pages hereof as "Designating Lender" and "Designated Lender", respectively, on the date hereof shall be deemed to have executed a Designation Agreement, and shall be bound by the respective representations, warranties and covenants contained therein, and such designation shall be conclusively deemed to be accepted by the Company and the Administrative Agent. The parties to each such designation occurring subsequent to the execution date hereof shall execute and deliver to the Administrative Agent and the Company for their acceptance a Designation Agreement. Upon such receipt of an TERM LOAN AGREEMENT 45 50 appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is a Designated Lender and consented to by the Company and the Administrative Agent, the Administrative Agent will accept such Designation Agreement and will give prompt notice thereof to the Company and the other Lenders, whereupon, (i) the Company shall execute and deliver to the Designating Lender a Designated Lender Note payable to the order of the Designated Lender, (ii) from and after the effective date specified in the Designation Agreement, the Designated Lender shall become a party to this Agreement with a right to fund Borrowings on behalf of its Designating Lender pursuant to Section 2.1(b), and (iii) the Designated Lender shall not be required to make payments with respect to any entry relating obligations in this Agreement except to the extent of excess cash flow of such Bank’s Percentages Designated Lender which is not otherwise required to repay obligations of such Designated Lender which are then due and payable; provided, however, that regardless of such designation and assumption by the Designated Lender, the Designating Lender shall be and remain obligated to the Company, the Administrative Agent and the principal amounts owing Lenders for each and every of the obligations of the Designating Lender and its related Designated Lender with respect to such Bankthis Agreement, including, without limitation, any indemnification obligations under Section 11.5(c) upon reasonable notice to the Agent hereof and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice sums otherwise payable to the Company by the Designated Lender. Each Designating Lender, or a specified branch or affiliate thereof, shall serve as the administrative agent of its Designated Lender and shall on behalf of its Designated Lender: (i) receive any and all payments made for the making benefit of such Designated Lender and (ii) give and receive all communications and notices and take all actions hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under or relating to this Agreement and the other Loan Papers. Any such notice, communication, vote, approval, waiver, consent or amendment shall be signed by a Designating Lender, or specified branch or affiliate thereof, as administrative agent for its Designated Lender and need not be signed by such Designated Lender on its own behalf. The Company, the Administrative Agent and the Lenders may rely thereon without any entry in requirement that the Register Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer all or any change portion of its interest hereunder or under any other Loan Paper, other than pursuant to an assignment to its Designating Lender pursuant to a pledge to its Liquidity Lender (if any) in accordance with Section 12.13(g) of this Agreement, or otherwise in accordance with the provisions of this Section 12.13.
(g) Notwithstanding any other provision set forth in this Agreement, (i) any Lender may at any time assign and pledge all or any portion of its Borrowings and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such entryFederal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder and (ii) any Designated Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement and the Designated Lender Note held by it in favor of its Liquidity Bank, and such Liquidity Bank may enforce such pledge or security interest in any manner permitted under applicable law, provided that (y) such Liquidity Bank possesses the characteristics necessary to be an Eligible Assignee under this Agreement, and (z) no such pledge shall release the Designating Lender from its obligations hereunder or grant to such Liquidity Bank the rights of a Lender hereunder absent foreclosure of such pledge.
(h) Each Bank that sells a participation shall (acting as non-fiduciary agent for the Company, solely for purposes of this Section 13.8) maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in each type of Advance or other obligations under the Loan Documents (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or Any Lender may furnish any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(i) Company authorizes each Bank to disclose to any prospective assignee or participant which has satisfied the requirements hereunder, any and all financial information in such Bank’s possession concerning the Company in the possession of such Lender from time to time to Eligible Assignees and its Subsidiaries which has been delivered Participants (including prospective Eligible Assignees and Participants), subject, however, to such Bank pursuant to this Agreement, provided that each such prospective assignee or participant shall execute a confidentiality agreement consistent with the terms of Section 13.13 hereof or shall otherwise agree to be bound by the terms thereof12.15 hereof.
(j) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
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