Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that neither the Parent nor the Borrowers may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender. (b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing. (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b). (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f). (g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement. (j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 2 contracts
Sources: Credit Agreement (Kirklands Inc), Credit Agreement (Kirklands Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities other than to a Competitor (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") Eligible Assignee all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Eligible Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by Borrower and Administrative Agent, no such assignment to an Eligible Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxAdministrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, the each other Loan Party, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Eligible Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor, an Eligible Assignee and an Assignee (andany other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 2 contracts
Sources: Credit Agreement (Standard Pacific Corp /De/), Credit Agreement (Standard Pacific Corp /De/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative AgentAgents, the Issuing Lenders, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents, each LenderIssuing Lender and each Lender (provided that a Borrower may merge or consolidate with another Borrower in accordance with Section 7.04).
(b) Any Lender may, without the consent of of, or notice to, any Borrower or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Company or any of its controlled Affiliates) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to enforce this agreement or to approve any amendment or waiver of any provision of 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 require the principal ofconsent of all Lenders, all affected Lenders or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent all affected Lenders under a particular Facility pursuant to the assignment or transfer by any Section 10.01. Each Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.07(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and interest thereon) of each participant’s interest in the Loans or other Obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and the Borrowers, the Lenders and each Agent 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 notice to the contrary.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender one or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity more Eligible Assignees (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, with the Letters written consent of the Administrative Agent, the Company and, in the case of any assignment of Revolving Credit and Commitments, each Issuing Lender (in each case which shall not be unreasonably withheld, delayed or conditioned and, in the Notes case of the Company, shall be deemed given if such consent is not received or expressly declined in writing within five Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DD or any other form approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Company, the Administrative Agent or the Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower Company and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent (A) via an electronic settlement system satisfactory to the Administrative Agent or (B) if previously agreed by the Administrative Agent, manually, for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount (determined as of the date of the relevant Assignment and Acceptance or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Company and the NotesAdministrative Agent (each such consent not to be unreasonably withheld or delayed). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.17, 2.18 and 10.05 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph Section 10.06 to the contrary, (cI) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Company shall not be required to be executed and delivered by the Borrowers, for any assignment which (x) in the case of any assignment of Term Loans, to another Lender, an Affiliate of a Lender or a Related Fund of a Lender and, in the case of any assignment of Revolving Credit Commitments, to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender, (y) that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuingcontinuing or (z) during the primary syndication of the Loans and the Commitments to Persons identified in writing to the Company as syndication targets prior to the Amendment Effective Date and (II) the consent of the Administrative Agent shall not be required for any assignment of Term Loans to another Lender, an Affiliate of a Lender or a Related Fund of a Lender. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that could become completely exempt from withholding it is the legal and beneficial owner of the interest being assigned thereby free and clear of any taxadverse claim and that its Term Loan Commitment and Revolving Credit Commitment, assessment and the outstanding balances of its Term Loans and Revolving Credit Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above or otherwise agreed in writing between such assigning Lender and such assignee, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other charge Loan Document or levy imposed by any other instrument or on behalf document furnished pursuant hereto, or the financial condition of the United States Company or any taxing authority thereof ("U.S. Taxes") in respect of payment Subsidiary or the performance or observance by the Company or any Subsidiary of any Obligations due of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Non-U.S. Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 6.01 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; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral 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; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through as are delegated to the Administrative Agent), Agent and the Borrowers agree thereuponCollateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered be performed by it as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesa Lender.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (orThe Administrative Agent, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each acting for this purpose as agent of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s)Borrowers, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at one of its address referred to addresses in Section 11.2 the City of New York 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon, if requested by the Assignee, one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Company marked “canceled”. The Register shall be available for inspection by the Borrowers or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(hf) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.06(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing which fee shall may be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date waived or (z) reduced in the case sole discretion of the Administrative Agent), an Assignee which is Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender or is an affiliate of a Lender)hereunder) and any applicable tax forms, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Register. Each Borrower. On or prior to such effective date, the Borrowers, at their its own expense, promptly upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Amendment Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(ig) Each of the Parent and the Borrowers authorizes each Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.06, disclose to the assignee or participant or proposed assignee or participant any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning relating to the Parent, the Borrowers and their respective Affiliates which has been delivered Company furnished to such Lender by or on behalf of the Parent Company, including notification of the inclusion of, if applicable, material non-public information regarding the Company and/or its Subsidiaries; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement, of which the Borrowers Company is a third-party beneficiary, whereby such assignee or participant shall agree to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 10.15.
(h) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such assignment shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.
(iii) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Company, the option to provide to the Borrowers (which, in each case, shall not be unreasonably withheld all or delayed), pledging its rights in connection with any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or Note otherwise fails to provide all or any other Person.part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an
Appears in 2 contracts
Sources: Refinancing Amendment and Joinder Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersLoan Parties, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.203.9, 2.21 3.10 and 2.22 90 84 3.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.213.10, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign upon notice to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (whichassign to any Lender, in each case, shall not be unreasonably withheld any affiliate of any Lender or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity Eligible Transferee (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofof a Lender) shall be in an aggregate principal amount of less than $2,000,000 (or an integral multiple of $1,000,000 in excess thereof) (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and each Lender’s Affiliates, if any. Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 11.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans and Notes relate only to the absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank (it being understood that any foreclosure of any such security interest and any assignment of rights (including voting rights) in accordance with applicable law or connection therewith shall be subject to the requirements of this Section).
(iig) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes (in a form to be reasonably agreed with the prior consent Borrower) to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Northwest Airlines Corp), Credit and Guarantee Agreement (Northwest Airlines Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Revolving Credit Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Credit Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationSection
10.1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Revolving Credit Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 with respect to its participation in the Revolving Credit Commitments and the Revolving Credit Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Administrative Agent, the Issuing Lender and, other than upon the occurrence and during the continuance of a Default or Event of Default, the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent, the Issuing Lender or the Borrower is required pursuant to the foregoing provisions, by such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender Lender, Related Fund or any affiliate thereofof a Lender or Related Fund) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term LoansAdministrative Agent; provided further that, Tranche B Term Loan Commitments and/or Tranche B Term Loans and after giving effect to such assignment, the aggregate principal amount of such Assignor’s Revolving Credit Commitments and/or Commitment or Revolving Credit Loans shall be at least $2,000,000 (other than in the case of an assignment to a Related Fund or to an affiliate of such Assignor or of all of a Lender’s interests under this Agreement), unless otherwise agreed by the assigning LenderBorrower and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Revolving Credit Commitments and/or Revolving Credit Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.14, 2.15 and 10.5). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent For purposes of the Designated Borrower minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall not be required, and, unless requested by aggregated. For the Assignee and/or purposes of the assigning Lender, new Notes shall not be required minimum Revolving Credit Commitment and Revolving Credit Loans to be executed held by any Assignor after giving effect to any assignment, such amounts shall be aggregated in respect of each Lender and delivered by the Borrowersits affiliates or Related Fund, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingif any.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Credit Commitment of, and principal amount of the Revolving Credit 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Revolving Credit Loans and any Notes evidencing such Revolving Credit Loans recorded therein for all purposes of this Agreement. Any assignment of any Revolving Credit Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Revolving Credit Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Revolving Credit Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or to any Agent or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Revolving Credit Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Revolving Credit Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Revolving Credit Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Revolving Credit Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Revolving Credit Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Revolving Credit Loan, the Granting Lender shall be obligated to make such Revolving Credit Loan pursuant to the terms hereof. The making of a Revolving Credit Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Revolving Credit Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Revolving Credit Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Revolving Credit Loans, and (B) disclose on a confidential basis any non-public information relating to its Revolving Credit Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Revolving Credit Loans outstanding at the time of such proposed amendment.
Appears in 2 contracts
Sources: Credit Agreement (Sba Communications Corp), Credit Agreement (Sba Communications Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Term Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its their rights or obligations under this Agreement except in a transaction permitted pursuant to Section 6.4(a)(i)(x) without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Term Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) Fortress, any of its Affiliates (other than any Affiliated Loan Fund) or any of their respective associated investment funds, (ii) a natural person or (iii) any Disqualified Assignee. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Term Loan and Commitments for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, consent of all the Lenders or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent each affected Lender pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Term Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections 2.202.19, 2.20 or 2.21 (subject to the requirements and limitations of such Sections, Section 2.22 90 84 and 2.24, including the requirements of Section 2.21(d) through (g) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent that entitlement to a greater amount results from a change in Law that occurs after such Participant acquires the applicable participation, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each Participant’s interest in the Term Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of 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 to the extent 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 and to confirm a Participant is not a Disqualified Assignee.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to the Arranger or Affiliate of the Arranger) and, so long as no Event of Default under Section 7.1(a) or (f) has occurred and is continuing, the Borrower (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to the Arranger or Affiliate to the Arranger) (provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate thereof oraffiliate, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld Related Fund or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date)Control Investment Affiliate thereof, to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents; provided, further, that no such assignment to an Assignee (other than any Lender or any affiliate thereof) of Term Loans and Commitments shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Term Loans and Commitments) shall have Term Loans aggregating at least $1,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement and to (i) Fortress, any of its Affiliates or any of their respective associated investment funds (other than Holdings, the NotesBorrower or any of their respective Subsidiaries). Such assignment need not be ratable as among , unless the additional limitations set forth in Section 9.6(d) are satisfied, (ii) Holdings, the Borrower or any Tranche A Term of their respective Subsidiaries, except pursuant to Borrower Loan Commitments and/or Tranche A Term LoansPurchase made in accordance with Section 9.6(i), Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender(iii) any natural person or (iv) any Disqualified Assignee. Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Term Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) , except as to Sections 2.20, 2.21 and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") 9.5 in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date). For purposes of the minimum assignment amounts set forth in this paragraph, the Borrowers, at their own expense, multiple assignments by two or more Related Funds shall execute and deliver be aggregated. Any assignment or participation to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Notea Disqualified Assignee is void ab initio unless such assignment or participation, as the case may be, of has been approved by the assigning Lender) Borrower, in which case such assignee or participant shall not be considered a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteDisqualified Assignee solely for such particular assignment or participation, as the case may be, to the order of such Assignee (or, in . In the case of any Alternative Notean assignment not approved by the Borrower, payable to such Disqualified Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated deleted from the Closing Date and shall otherwise be in Register upon written notification from the form Borrower. Except for providing the list of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes Disqualified Assignees to each Lender to disclose to any Participant or Assignee (eachLender, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld have no responsibility or delayed), pledging its rights in connection with any Loan liability to monitor or Note to any other Personenforce such list of Disqualified Assignees.
Appears in 2 contracts
Sources: Senior Secured Delayed Draw Term Loan Credit Agreement (New Fortress Energy LLC), Senior Secured Delayed Draw Term Loan Credit Agreement (NFE Financial Holdings LLC)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower and with notice to the Syndication Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and with written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof or a Person under common management with a Lender or, with the consent of the Designated Borrower and the Administrative Syndicate Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance (an "Assignment and Acceptance, ") substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender Assignor, the Syndication Agent and the Administrative Agent (and, in where the case consent of an Assignee that the Borrower is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative AgentBorrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower, the Syndication Agent and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent (acting for this purpose as agent of the Borrower) shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofthereof or a Person under common management with such Lender, by the Designated Borrower and Borrower, the Administrative Agent, the Syndication Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to ▇▇▇mercial ▇▇▇ Commercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or applicable Tranche B LoanTerm Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or applicable Tranche B LoanTerm Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 2 contracts
Sources: Credit Agreement (Nationwide Credit Inc), Credit Agreement (Nationwide Credit Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, the Issuing Lenders, all future holders of the Notes Loans and Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers and Borrower, the Administrative Agent and the Issuing Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.15(d) (it being understood that the documentation required under Section 2.15(d) shall be delivered to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (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) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and Borrower, the Administrative Agent and each Issuing Lender; provided, however, that no consent of any Issuing Lender shall be required for an assignment of all or any portion of a Term Loan, New Term Loan or New Term III Loan (which, in each case, shall not be unreasonably withheld withheld, delayed or delayedconditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (provided that no such ii) the Borrower's consent need shall not be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for considered to be unreasonably withheld, delayed or conditioned if the Borrower withholds, delays or conditions its consent because, among other factors, it is concerned about a period of 120 days following the Closing Datepotential Assignee's capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 10,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) 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 BorrowersBorrower, the Administrative Agent Agent, the Issuing Lenders and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a promissory note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the promissory note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered assignment by a Lender to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior secure obligations to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue a promissory note to any Lender requiring such a note to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender.
Appears in 2 contracts
Sources: Competitive Advance and Revolving Credit Agreement (Tegna Inc), Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (except in a transaction permitted by Section 7.4).
(b) Any Lender may, without the consent of any Borrower or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities other than an Ineligible Institution (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, the Participant will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to this Agreement (including in the bankruptcy or similar event of the Lender) and the Borrowers Borrowers, the Issuing Lenders, the other Lenders and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the consent of the applicable participating Lender and would reduce the principal of, of or interest on, the Notes Loans or any fees payable hereunder, postpone the date of any scheduled amortization payment or the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that if amounts outstanding under such Lender shall retain the sole right to enforce this Agreement and the Notes are due or unpaidother Loan Documents and, or shall have been declared or shall have become due and payable upon other than as set forth in the occurrence of an Event of Default, each Participant shallpreceding sentence, to the maximum extent permitted by applicable lawapprove any amendment, be deemed to have the right modification or waiver of setoff in respect any provision of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunderother Loan Document. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 (subject to the requirements and limitations set forth therein) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; Lender; provided that, in the case of Section 2.21, that such Participant shall have complied with (i) agrees to be subject to the requirements provisions of said Sections 2.23 and 2.24 and 9.6(d) as if it were an assignee under paragraph (c) of this Section and provided, further, that no Participant (ii) shall not be entitled to receive any greater amount pursuant to any such Section Sections 2.20, 2.21 or 2.22 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (cand stated interest) Any Lender may, of each Participant’s interest in the ordinary course Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of its business and in accordance with applicable law, at any time and from time to time assign the Participant Register to any Lender Person (including the identity of any Participant or any affiliate thereof orinformation relating to a Participant’s interest in any Commitments, with Loans, Letters of Credit or its other obligations under any Loan Document) except to the consent 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 Designated Borrower United States Treasury Regulations and Section 1.163-5(b) of the Administrative Agent Proposed United States Treasury Regulations (whichor, in each case, shall not be unreasonably withheld any amended or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datesuccessor version), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Participant Register shall be conclusive, in the absence of conclusive absent manifest error, and the Borrowerssuch Lender, each Loan Party and the Administrative Agent and the Lenders shall treat each Person person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of the Loan recorded therein such participation for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment notwithstanding notice to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebycontrary.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 2 contracts
Sources: Credit Agreement (Neogen Corp), Credit Agreement (Garden SpinCo Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersGannett, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of Gannett or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Gannett agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Gannett also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated Borrower Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld withheld, delayed or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Dateconditioned), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 10,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Gannett shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Gannett, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersGannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a promissory note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the promissory note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered assignment by a Lender to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior secure obligations to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with Gannett, upon receipt of written notice from the prior consent relevant Lender, agrees to issue a promissory note to any Lender requiring such a note to facilitate transactions of the type described in paragraph (f) above.
(h) Each of Gannett, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender.
Appears in 2 contracts
Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (except in a transaction permitted by Section 7.4).
(b) Any Lender may, without the consent of any Borrower or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities other than an Ineligible Institution (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrowers, the Issuing Lenders, the other Lenders and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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, of or interest on, the Notes Loans or any fees payable hereunder, postpone the date of any scheduled amortization payment or the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Each Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 (subject to the requirements and limitations in Section 2.21) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, that such Participant shall have complied with (i) agrees to be subject to the requirements provisions of said Sections 2.23 and 2.24 as if it were an assignee under paragraph (c) of this Section and provided, further, that no Participant (ii) shall not be entitled to receive any greater amount pursuant to any such Section 2.20 or 2.21 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, occurred except to the extent provided such entitlement to receive a greater payment results from an adoption of or any change in such Assignment and Acceptance, have any Requirement of Law or in the rights and obligations interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of a Lender hereunder with a Commitment as set forth therein, and (ylaw) the assigning Lender thereunder shall, from any central bank or other Governmental Authority made subsequent to the extent provided Closing Date that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in such Assignment and Acceptance, be released from its the Loans or other obligations under this Agreement (and, in the case of an Assignment and Acceptance covering “Participant Register”); provided that no Lender shall have any obligation to disclose all or the remaining any portion of an assigning Lender's rights and the Participant Register to any Person (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 this Agreementany Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision Loan, Letter of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment Credit or other charge or levy imposed by or on behalf obligation is in registered form under Section 5f.103-1(c) of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timeTreasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of conclusive absent manifest error, and the Borrowerssuch Lender, each Loan Party and the Administrative Agent and the Lenders shall treat each Person person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of the Loan recorded therein such participation for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment notwithstanding notice to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebycontrary.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 2 contracts
Sources: Credit Agreement (Tenneco Inc), Credit Agreement (Tenneco Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment the Participation of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (w) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 (and subject to the limitations thereof) with respect to its participation in the Commitments Participations and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section 2.13 (including the requirements under Sections 2.13(e), 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.11, 2.12 or 2.13 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law made subsequent to the date hereof that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Participations or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Participation or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates or an Ineligible Institution) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not then a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Participation and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment Participation of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan or Participation, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Participation evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan or Participation accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration fee not payable with respect to assignments to an Assignor’s Affiliate and processing such fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Parent and the Borrowers authorizes Borrower, each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Bungeltd), Revolving Credit Agreement (Bungeltd)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (i) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 (and subject to the limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section 2.13 as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need shall be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, required in the case of an Assignee (x) any assignment to a Person that is not then a Lender or a Lender Affiliate or (y) any assignment of a Commitment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount and currency of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration and processing fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank or any other central bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Bunge LTD), Revolving Credit Agreement (Bunge LTD)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement or any other Loan Document without the prior written consent of the Administrative Agent and each LenderLender (and any attempted such assignment or transfer without such consents shall be null and void).
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any the Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Credit Loan or any Reimbursement Obligation for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefromtherefrom and each Lender shall retain the sole right to enforce any Loan Document and approve any amendment, modification or waiver of any provision of the Loan Documents, except that a selling Lender may agree that, without the Participant’s consent, such selling Lender will not agree to any amendment, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or Reimbursement Obligations or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Revolving Credit Commitments and the Loans and Reimbursement Obligations outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of each Issuing Lender, the Designated Borrower and Swing Line Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower or any other Person is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agenteach such other Person) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 3,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless (i) otherwise agreed by the Borrower and the Notes). Such Administrative Agent or (ii) such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loansis one of two or more assignments being made simultaneously to affiliated Assignees, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans the sum of the assigning Lenderaggregate principal amounts of which is at least $3,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party heretohereto except as to Sections 2.13, 2.14, 2.16 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Revolving Credit Commitment of, and principal amount of the Loans Revolving Extensions of Credit owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Revolving Extensions of Credit and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Revolving Extensions of Credit) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to ▇▇▇mercial ▇▇▇ Commercial Paper Inc. for a period of 120 days following the Closing Date or any Affiliate thereof or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders Lenders, the Administrative Agent and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed Commitment acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each caseparty hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld) to any financial institutions providing liquidity and/or credit support to or delayed)for the account of such SPC to support the funding or maintenance of Loans, pledging and (B) disclose on a confidential basis any non-public information relating to its rights in connection Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or Note withhold any consent applicable to such Loan, but such Granting Lender shall communicate with the Administrative Agent and the Borrower as to the giving or withholding of such consent, and the parties to the Loan Documents shall be entitled to rely conclusively on the advice by such Granting Lender as to whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of any other PersonSPC with Loans outstanding at the time of such proposed amendment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Polaner Inc), Revolving Credit Agreement (B&g Foods Holdings Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Agents and their respective successors and assigns, except as otherwise provided in Section 8.4, that neither the Parent nor the Borrowers no Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (and any purported such assignment or transfer by such Borrower without such consent of each Lender shall be null and void).
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (eachindividually, a "“Participant"” and, collectively, the “Participants”) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsDocuments (a “Participation”). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan, Reimbursement Obligation or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, except with respect to Sections 4.10 and 4.11, under which the Participant has certain rights with respect thereto. In no event shall any Participant under any such participation Participation have any right to approve any amendment to or waiver of any provision of 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 the stated rate of interest on, the Notes Loans, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment Loans or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Reimbursement Obligations, in each case to the extent subject to such participationParticipation (and, for the avoidance of doubt, the Borrowers may exercise any rights granted to it in Section 4.17 with respect to the Lender that sold a Participation to such Participant to the extent that the direction by such Participant to such Lender to not consent to any such amendment would cause the applicable Lender to be subject to the provisions of Section 4.17). The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaidunpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable lawLaw, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, that in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a11.8(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of of, and bound by the obligations imposed on the Lenders in, Sections 2.204.10, 2.21 4.11 and 2.22 90 84 4.14 with respect to its participation Participation in the Commitments and the Loans and other extensions of credit hereunder outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable lawLaw, at any time and from time to time assign to any Lender or any affiliate thereof Subsidiary, Affiliate or Approved Fund thereof, or, with the consent of the Designated Borrower Collateral Agent, and, in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Administrative Borrowers’ Agent (which, in each case, which consent shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bankany other Person (the “Assignee”), financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate any Subsidiary, Affiliate or Approved Fund thereof, by the Designated Borrower Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing and the Administrative Borrowers’ Agent is not deemed to consent to such assignment, the Borrowers’ Agent) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no (i) each such assignment to an Assignee (other than any Lender or any affiliate thereofLender) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (A) an assignment of all of a Lender's ’s interests under this Agreement or (B) an assignment to another Lender, a Subsidiary, an Affiliate or an Approved Fund of such assigning Lender), unless otherwise agreed by the Collateral Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such amount to be aggregated in respect of assignments by to any Lender and the Notesaffiliates or Approved Funds thereof). Such , (ii) in the case of an assignment need by a Lender to a Bank CLO managed by such Lender or an affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such consent not to be ratable unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section 11.2, and (iii) each Assignee shall comply with the provisions of Section 4.11(e) and (iv) each partial assignment shall be made as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitments assigned, and each Lender assigning all or a portion of its rights and obligations must do so on a pro rata basis among the two separate Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (ge) of this Section 11.611.7, (x) the consent of the Designated Borrower Borrowers’ Agent shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers’ Agent, for any assignment which occurs at any time when any of the events described in Section 8(f9.1(f) shall have occurred and be continuingcontinuing and (y) the Borrowers’ Agent shall be deemed to have consented to any assignment that requires such consent pursuant to the terms thereof unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with Section 11.7(b).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its 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 (including Alternative Noteholdersall Assignees and successors) and the Commitment Commitments of, and principal amount amounts of the Loans and other Obligations owing to, each Lender from time to time. The entries made in the Register shall shall, to the extent permitted by applicable Law, be conclusive, in prima facie evidence of the absence existence and amounts of the obligations of the Borrowers therein recorded (absent manifest error), and the Borrowers, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other Obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other Obligation hereunder as the Loan recorded therein owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary; provided, however, that the failure of the Administrative Agent to maintain the Register, or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with applicable interest) the Loans and other extensions of credit hereunder made to the Borrowers by such Lender in accordance with the terms of this Agreement. Any assignment of any Loan or other Obligation hereunder, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrowers’ Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. The parties intend for the Loans or other Obligations to be in registered form for tax purposes and this provision shall be construed in accordance with that intent.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender (or an affiliate any Subsidiary, Affiliate or Approved Fund thereof), by the Designated Borrower Administrative Agent, and in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Administrative Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent) ), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) other than in the case of an Assignee which is already assignment to a Lender or is an affiliate Affiliate of a LenderLender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby’ Agent.
(if) Each of the Parent and the The Borrowers authorizes authorize each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee in each case, any and all financial information in such Lender's ’s possession concerning the ParentBorrowers, the Borrowers other Loan Parties and their respective Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Parent Borrowers or the Borrowers other Loan Parties pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent Borrowers or the Borrowers other Loan Parties in connection with such Lender's ’s credit evaluation of the ParentBorrowers, the Borrowers other the Loan Parties and their respective Subsidiaries or Affiliates prior to becoming a party to this Agreement; provided that such Transferee or prospective Transferee shall have agreed to be bound by the provisions of Section 11.16 hereof.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.7 concerning assignments of Loans and other extensions of credit hereunder and Notes relate only to absolute assignments and that such provisions do not prohibit or restrict any Lender from assignments creating security interests, including, without limitation, (i) pledging any pledge or assigning assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law or Law and (ii) with any pledge or assignment by a Lender which is a fund to its trustee for the prior consent benefit of the Administrative Agent and the Borrowers (which, in each case, such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that no such pledge or assignment of a security interest shall not be unreasonably withheld release a Lender from any of its obligations hereunder or delayed), pledging its rights in connection with substitute any Loan such pledgee or Note to any other Personassignee for such Lender as a party hereto.
Appears in 2 contracts
Sources: Credit Agreement (Cypress Environmental Partners, L.P.), Credit Agreement (Cypress Energy Partners, L.P.)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (i) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need shall be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, required in the case of an Assignee (x) any assignment to a Person that is not then a Lender or a Lender Affiliate or (y) any assignment of a Commitment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount and currency of the Loans owing to, each Lender from time to time, which Register shall be made available to any Lender upon request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration and processing fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Bunge LTD), Revolving Credit Agreement (Bunge LTD)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersGannett, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of Gannett or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Gannett agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Gannett also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld withheld, delayed or delayedconditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify Gannett as promptly as possible of any request for assignment and Gannett, in turn, should promptly consider such request for assignment; and (provided that no such ii) Gannett’s consent need shall not be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for considered to be unreasonably withheld, delayed or conditioned if Gannett withholds, delays or conditions its consent because, among other factors, it is concerned about a period of 120 days following the Closing Datepotential Assignee’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 10,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Gannett shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Gannett, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersGannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a promissory note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the promissory note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered assignment by a Lender to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior secure obligations to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with Gannett, upon receipt of written notice from the prior consent relevant Lender, agrees to issue a promissory note to any Lender requiring such a note to facilitate transactions of the type described in paragraph (f) above.
(h) Each of Gannett, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender.
Appears in 2 contracts
Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent Borrower nor the Borrowers Restricted Subsidiaries may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, ------------ Lender or any Note held by L/C Obligation of such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing -------- such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a12.7(a) as --------------- fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.204.9, 2.21 4.10 and 2.22 90 84 4.11 ------------ ---- ---- with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21-------- ------- 4.10, such Participant shall have complied with the requirements of said Section ---- and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity Person (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit -------- Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DA, executed by such Assignee, Assignee and such --------- assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister (with a copy to the Borrower); provided that that, (i) -------- no such assignment to an Assignee (other than to any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 and $1,000,000 multiples thereof, (other ii) after giving effect to any such assignment, the assigning Lender (together with any Lender which is an affiliate of such assigning Lender) shall retain no less than 51% of its original Commitment, unless otherwise agreed to by the Borrower, (iii) no such assignment may be made unless such assigning Lender also assigns a percentage of its interest in the case Tranche B Agreement equal to the percentage of an assignment of all of a Lender's interests the Total Commitment being assigned by such Lender under this Agreement and to the Notes). Such same Assignee receiving such percentage of its interest hereunder and (iv) each assignment need (other than to any Lender or any affiliate thereof) shall be subject to the prior written consent of the Borrower (which consent shall not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lenderunreasonably withheld). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in ---------- respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers Borrower (through the Administrative Agent), and the Borrowers agree Borrower agrees thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 L (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative --------- ---------------- Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative ----------- Noteholder") (or, if such Alternative Noteholder is not the beneficial owner ---------- thereof, such beneficial owner) shall deliver to the Borrowers Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each a Form W-8 (Certificate of Foreign Status of the forms U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and certifications required is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by Section 2.21(bthe U.S. taxing authorities for such purposes).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f12.6(f).. ---------------
(g) The Administrative Agent Agent, on behalf of the Borrower, shall maintain at its the address of the Administrative Agent referred to in Section 11.2 12.2 ------------ 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 --------- (including Alternative Noteholders) and the Commitment Commitments of, and principal amount amounts 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 BorrowersBorrower, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of Subject to Section 12.15, the Parent and the Borrowers Borrower authorizes each Lender to ------------- disclose to any Participant or Assignee (each, a "Transferee") and any ---------- prospective Transferee, subject to the Transferee agreeing to be bound by the provisions of Section 12.15, any and all financial information in such Lender's ------------- possession concerning the Parent, Borrower and the Borrowers and their respective Affiliates Restricted Subsidiaries which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers Borrower and their respective Affiliates its Restricted Subsidiaries prior to becoming a party to this Agreement.
(j) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 2 contracts
Sources: Credit Agreement (Cable Tv Fund 12-C LTD), Credit Agreement (Jones Intercable Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANT") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.07(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; provided PROVIDED that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section and providedPROVIDED, furtherFURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "ASSIGNOR") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "AssigneeASSIGNEE") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister (as defined below); provided that PROVIDED that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, and after giving effect to such assignment, such assigning Lender shall have Commitments and Loans in an aggregate amount of at least $5,000,000 in each case described in this sentence except in the case of an assignment of all of a Lender's interests under this Agreement Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and the Notes)its Lender Affiliates, if any. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term LoansThe Assignee shall purchase, Tranche B Term Loan Commitments and/or Tranche B Term at par, all Loans and Revolving Credit Commitments and/or Revolving Credit Loans pay all accrued interest and other amounts owing to such Assignor under this Agreement on or prior to the date of the assigning Lenderassignment for any assignment pursuant to Section 2.16. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.06, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs after the occurrence and during the continuance of an acceleration of the Obligations. Notwithstanding the foregoing, any Conduit Lender may assign at any time when any to its designating Lender hereunder without the consent of the events described Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing9.06(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.02 a copy of each Assignment and Acceptance delivered to it and a register (the "RegisterREGISTER") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.06(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.06 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) The Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; PROVIDED, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Fedex Corp), Credit Agreement (Fedex Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event Any agreement pursuant to which any Lender shall any Participant under sell any such participation have any participating interest shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce the Borrowers' obligations hereunder, including the right to approve consent to any amendment amendment, supplement, modification or waiver of any provision of any Loan Document, this Agreement 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 Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all provided that such participation agreement may provide that such Lender will not agree to any amendment, supplement, modification or a substantial portion waiver described in clause (A) or (B) of the Collateral (other than in connection with any sale or other disposition proviso to the second sentence of assets permitted by Section 7.6) or any guarantee subsection 15.1 without the consent of the Obligations, in each case to the extent subject to such participationParticipant. The Borrowers agree Each Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(asubsection 15.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.20subsections 7.10, 2.21 7.11, 7.12, 7.13 and 2.22 90 84 15.6 with respect to its participation in the Commitments and the Loans outstanding from time to time hereunder as if it was a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate Affiliate thereof or, with the prior written consent of the Designated U.S. Borrower (such consent not to be unreasonably withheld) and the Administrative Agent (which, in each case, shall such consent not to be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datewithheld), to an additional bank, bank or financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents including, without limitation, its Commitments and Loans, pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DG, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated U.S. Borrower and the Administrative Agent) and delivered to the Administrative Agent for its their acceptance and recording in the Register; provided that no (i) if any Lender assigns a part of its rights and obligations in respect of Revolving Credit Loans and/or Revolving Credit Commitment under this Agreement to an Assignee, such Lender shall assign proportionate interests in their respective Revolving Credit Loans and Revolving Credit Commitment and other related rights and obligations hereunder to such Assignee, (ii) if any Lender assigns a part of its rights and obligations under this Agreement in respect of its Revolving Credit Loans and/or Revolving Credit Commitments to an Assignee, such Lender shall assign proportionate interests in (A) its participations in the Swing Line Loans and other rights and obligations hereunder in respect of the Swing Line Loans to such Assignee and (B) Multicurrency Loans and Multicurrency Commitments, (iii) in the case of any such assignment to an Assignee additional bank or financial institution, the aggregate amount of any Revolving Credit Commitment (other than any Lender or, if the Revolving Credit Commitments have terminated or any affiliate thereof) shall be in an expired, the aggregate principal amount of any Revolving Credit Loans) being assigned shall not be less than $2,000,000 10,000,000 (other than in or (x) if less, the case then outstanding amount of an assignment of all of a Lender's interests under this Agreement such Commitments and/or Loans or (y) such lesser amount as may be agreed by the Borrowers and the NotesAdministrative Agent). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (xI) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments, rights in respect of Loans as set forth therein, and (yII) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, shall be released from its obligations under this Agreement to the extent that such obligations shall have been expressly assumed by the Assignee pursuant to such Assignment and Acceptance (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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address their respective addresses referred to in Section 11.2 subsection 15.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of (i) the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment Commitments of, and principal amount amounts of the Loans owing to, each Lender from time to timetime and (ii) the other information required from time to time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries in the Register shall be conclusive, in constitute prima facie evidence of the absence of manifest errorinformation recorded therein, and the Borrowers, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other obligation hereunder not evidenced by a Revolving Credit Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Revolving Credit Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, executed by the Designated Borrower Borrowers and the Administrative Agent) ), together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)2,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give prompt notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the Borrowers Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers such Borrower and their respective its Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers such Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers such Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers such Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans and Revolving Credit Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Revolving Credit Note to any Federal Reserve Bank in accordance with applicable law law.
(h) If, pursuant to this subsection, any interest in this Agreement or any Loan is transferred to any Transferee (iiwhich is a Lender) which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such Transferee, concurrently with the prior consent effectiveness of such transfer, to agree (for the benefit of the transferor Lender, the Administrative Agent and the Borrowers U.S. Borrower) to provide the transferor Lender (whichand, in each casethe case of any Transferee registered in the Register, shall not the Administrative Agent and the U.S. Borrower) the tax forms and other documents required to be unreasonably withheld delivered pursuant to subsection 7.11(b) and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(i) If, pursuant to this subsection, any interest in this Agreement or delayed), pledging its rights in connection with any Loan or Note is transferred to any Transferee, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to agree (for the benefit of the transferor Lender, the General Administrative Agent and the Foreign Subsidiary Borrowers) to provide the transferor Lender, the General Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and other Persondocuments required to be delivered pursuant to subsection 9.11(c) and to comply from time to time with all applicable laws and regulations with regard to such withholding tax exemption.
Appears in 2 contracts
Sources: Revolving Credit and Guarantee Agreement (Case Corp), Revolving Credit and Guarantee Agreement (Case Credit Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender Lender, other than a Conduit Lender, may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant"“Participants”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event No Lender shall be entitled to create in favor of any Participant under any Participant, in the participation agreement pursuant to which such participation have Participant’s participating interest shall be created or otherwise, any right to approve any amendment or waiver of any provision of 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 vote on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by approve any Borrower of any of its rights and obligations under matter relating to this Agreement and the or any other Loan Documents, release all or a substantial portion Document except for those specified in clauses (i) and (ii) of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case proviso to the extent subject to such participationsubsection 13.1(a). The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(asubsection 13.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20subsections 3.9, 2.21 3.10 and 2.22 90 84 3.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21subsection 3.10, such Participant shall have complied with the requirements of said Section subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender Lender, other than a Conduit Lender, may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time time, assign to any Lender or any affiliate thereof orLender Affiliate with the consent (in each case, not to be unreasonably withheld) of the Administrative Agent, the Issuing Lender and, except for assignments to any Lender or Lender Affiliate of comparable credit worthiness, the Borrower, or with the consent of the Designated Borrower (unless a Default or an Event of Default shall have occurred and be continuing), the Administrative Agent and Issuing Lender (which, which consent in each case, case shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datewithheld), to an additional bank, financial institution institution, or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DH, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereofa Lender Affiliate of comparable credit worthiness, by the Designated Borrower Borrower, the Administrative Agent and the Issuing Lender, and, in the case of an Assignee that is a Lender or a Lender Affiliate, by the Administrative AgentAgent and the Issuing Lender) and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided that no that, in the case of any such assignment to an Assignee (additional bank, financial institution or other than any Lender or any affiliate thereof) shall be in an entity, the sum of the aggregate principal amount of the Loans and the aggregate amount of the unused Revolving Credit Commitment being assigned shall be not less than $2,000,000 (other 5,000,000 and, if such assignment is of less than in the case of an assignment of all of a Lender's interests under this Agreement the rights and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans obligations of the assigning Lender, the sum of the aggregate principal amount of the Revolving Credit Loans and the aggregate amount of the unused Revolving Credit Commitment remaining with the assigning Lender shall be not less than $10,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative Agent). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Each assignment by a Lender of any portion of its Revolving Credit Commitment shall be accompanied by assignment by such Lender to the same Assignee of the same percentage of such Lender’s Multicurrency Commitment. Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in Section 8(f) shall have occurred and be continuingthe first sentence of this subsection 13.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Administrative Agent referred to in Section 11.2 subsection 13.2 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 (including Alternative Noteholders) and the Commitment Commitments 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 BorrowersBorrower, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofa Lender Affiliate, by the Designated Borrower (if required) and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the Borrowers The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee Transferee, subject to the provisions of subsection 13.14, any and all financial information in such Lender's ’s possession concerning the Parent, the Borrowers Borrower and their respective its Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's ’s credit evaluation of the Parent, the Borrowers such Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 2 contracts
Sources: Multi Year Revolving Credit Agreement (Boston Scientific Corp), Revolving Credit Agreement (Boston Scientific Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentArrangers, the Agents, the Managers, the Managing Agents, all future holders of the Notes Loans and Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender. No Lender may assign its rights and obligations under this Agreement, except as provided in this Section 10.6. Any purported sale, assignment, participation or other transfer by any Lender of any of its rights or obligations hereunder, other than as expressly permitted under this Section 10.6, shall be null and void and of no force and effect.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower, the Arrangers, the Agents, the Managing Agents and the Administrative Agent Managers shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided provided, that, in the case of Section 2.212.20, such Participant shall have fully complied with the requirements of said Section 2.20 and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section 2.19, 2.20 or 2.21 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to the Borrower (only in connection with a Permitted Loan Repurchase), any Lender, any Affiliate of the assigning Lender or of another Lender or any affiliate thereof Affiliated Fund of the assigning Lender or of another Lender (provided, that if any funding obligations are assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit 1 Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each casethe case of the Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld withheld, conditioned or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity that is an Eligible Assignee (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment assignment and Acceptanceacceptance agreement, substantially in the form of Exhibit DE hereto or such other form as shall be approved by the Administrative Agent (such approval not to be unreasonably withheld) (an “Assignment and Acceptance”; provided, that to the extent approved by the Administrative Agent, an Assignment and Acceptance may be electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be the settlement system of ClearPar, LLC), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a the Borrower, the Administrative Agent or the Issuing Lender or an affiliate thereofthe Swing Line Lender is required pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided provided, that no such assignment to an Assignee (other than the Borrower (in connection with a Permitted Loan Repurchase), any Lender or any affiliate thereofAffiliate of the assigning Lender or of another Lender or Affiliated Fund of the assigning Lender or of another Lender) shall be in an aggregate principal amount of less than $2,000,000 (other than in 5,000,000 with respect to Revolving Credit 1 Commitments or Revolving Credit 2 Commitments or $1,000,000 with respect to Term Loan Commitments or Term Loans, unless otherwise agreed by the case of an assignment of all of a Lender's interests under this Agreement Borrower and the NotesAdministrative Agent (provided, that for purposes of the foregoing limitations only, any two or more funds that concurrently invest in Loans and are managed by the same investment advisor, or investment advisors that are Affiliates of one another, shall be treated as a single Assignee). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder (unless such Assignee is the Borrower) shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, therein and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6(c), the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment by the Assignee or the Assignor to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe assigning Lender or of another Lender or an Affiliated Fund of the assigning Lender or of another Lender or with respect to the initial syndication of the Commitments), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit 1 Note, Tranche A Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or Tranche B New Term Note, as the case may be, of the assigning Lender) a new Revolving Credit 1 Note, Tranche A Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or Tranche B New Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) assigns in an amount equal to the Revolving Credit 1 Commitment, Tranche A Revolving Credit 2 Commitment, Term B-1 Loans, Term B-2 Loans and/or New Term Loan and/or Tranche B Loanor New Term Loan Commitment, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit 1 Commitment, Tranche A a Revolving Credit 2 Commitment, Term B-1 Loans, Term B-2 Loans and/or New Term Loans or a New Term Loan and/or Tranche B LoanCommitment, as the case may be, upon request, a new Revolving Credit 1 Note, Tranche A Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or Tranche B New Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender Assignor or its registered assigns) assigns in an amount equal to the Revolving Credit 1 Commitment, Tranche A Revolving Credit 2 Commitment, Term B-1 Loans, Term B-1 Loans, and/or New Term Loans or New Term Loan and/or Tranche B LoanCommitment, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(g) Notwithstanding anything to the contrary contained herein, the Borrower shall be permitted to acquire Loans (other than Swing Line Loans) pursuant to a Permitted Loan Repurchase so long as any Loans so acquired are cancelled and retired immediately upon the closing of such Permitted Loan Repurchase. For all purposes under this Agreement, upon the closing of a Permitted Loan Repurchase, any Loans acquired by the Borrower pursuant to such Permitted Loan Repurchase (i) shall be deemed not to be outstanding and to have no principal amount and (ii) with shall be deemed to be automatically cancelled and retired without any further action by the prior consent of Borrower, the Administrative Agent, the Lenders or any other Person; provided, however, that the Borrower shall take such actions and execute such documents and agreements as may be reasonably requested by the Administrative Agent to further evidence such cancellation and retirement. Immediately upon the Borrowers cancellation and retirement of any Revolving Credit 1 Loans or Revolving Credit 2 Loans acquired by the Borrower from a Revolving Credit Lender pursuant to a Permitted Loan Repurchase, the Revolving Credit 1 Commitment or Revolving Credit 2 Commitment of such Lender (whichas applicable) shall be reduced by an amount equal to (i) such Revolving Credit Lender’s Revolving Credit 1 Commitment or Revolving Credit 2 Commitment (as applicable), in each casemultiplied by (ii) the quotient obtained by dividing (A) the principal amount of the Revolving Credit 1 Loans or Revolving Credit 2 Loans so acquired by (B) the aggregate amount of all Revolving 1 Extensions of Credit or Revolving 2 Extensions of Credit (as applicable) of such Lender immediately prior to such Permitted Loan Repurchase. For purposes of clarification, Permitted Loan Repurchases shall not be unreasonably withheld constitute payments (or delayed), pledging its rights in connection with prepayments) of Loans for any Loan or Note to any other Personpurpose hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Wynn Las Vegas LLC), Credit Agreement (Wynn Resorts LTD)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANT") participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided PROVIDED that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section and providedPROVIDED, furtherFURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "ASSIGNOR") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (an "ASSIGNEE") all or any affiliate thereof orpart of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; PROVIDED that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need shall be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, required in the case of an Assignee (x) any assignment to a Person that is not then a Lender or a Lender Affiliate or (y) any assignment of a Commitment to a Person that does not have a Commitment (except that the consent of the Borrower shall not be required for any assignment that occurs when an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 a copy of each Assignment and Acceptance delivered to it and a register (the "RegisterREGISTER") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration and processing fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a LenderBorrower), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; PROVIDED, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Bunge LTD), Revolving Credit Agreement (Bunge LTD)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parenteach Borrower, the Borrowers, the Lenders, the Administrative AgentLender, all future holders of the Notes Revolving Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each the Lender.
(b) Any The Lender may, without the consent of the Borrowersany Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANT") participating interests in any Revolving Loan owing to such Lender, any Note held by such the Lender, any Commitment of such Lender or any other interest of such the Lender hereunder and under the other Loan Documents. In the event of any such sale by a the Lender of a participating interest to a Participant, such the Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such the Lender shall remain solely responsible for the performance thereof, such the Lender shall remain the holder of any such Note Revolving Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such the Lender in connection with such the Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Revolving Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsRevolving Loans, in each case to the extent subject to such participation. The Borrowers agree Each Borrower agrees that if amounts outstanding under this Agreement and the Notes Revolving Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender lender under this Agreement or any NoteAgreement, provided PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders Lender the proceeds thereof as provided in Section 11.7(a8.7(a) as fully as if it were a Lender lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.201.12, 2.21 1.13 and 2.22 90 84 1.14 with respect to its participation in the Commitments and the Revolving Loans outstanding from time to time as if it was a Lenderlender; provided PROVIDED that, in the case of Section 2.211.13, such Participant shall have complied with the requirements of said Section Sections 1.12, 1.13 and provided1.14 and PROVIDED, furtherFURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor the Lender to such Participant had no such transfer occurred; PROVIDED, FURTHER, that so long as no Event Default has occurred and is continuing, the Borrowers shall have the right to object to any Participant, the inclusion of which entity would cause a material increase in the costs to the Borrowers pursuant to Section 1.13.
(c) Any The Lender may, in (the ordinary course of its business and in accordance with applicable law, "ASSIGNOR") shall have the right at any time and or from time to time to assign all or any portion of its rights or obligations under this Agreement to one or more banks or other financial institutions (each, an "ASSIGNEE"), and the Borrowers agree that they each shall execute, or cause to be executed, such documents, including, without limitation, amendments to this Agreement and to any other documents, instruments and agreements executed in connection herewith as the Lender shall deem reasonably necessary to effect the foregoing. In addition, at the request of the Lender and any such Assignee, the Borrowers shall jointly and severally issue one or more new promissory notes, as applicable, to any affiliate thereof orsuch Assignee and, with if the Lender has retained any of its rights and obligations hereunder following such assignment, to the Lender, which new promissory notes shall be issued in replacement of, but not in discharge of, the liability evidenced by the promissory notes held by the Lender prior to such assignment and shall reflect the amount of the respective commitments and loans held by such Assignee and the Lender after giving effect of such assignment; PROVIDED, that no such assignment shall occur, unless to an Affiliate of the Lender, without the prior written consent of the Designated Borrower and Borrowers (which consent of the Administrative Agent (which, in each case, Borrowers shall not be unreasonably withheld or delayed) (provided that no such delayed and which consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any if an Event of the events described in Section 8(f) Default shall have occurred and be continuing; PROVIDED, FURTHER, that the Borrowers shall be deemed to have consented to any such assignment in the event the Borrowers have not provided the Bank with a written objection (specifying the grounds therefor) to any such assignment within five (5) Business Days after the Lender has provided written notice to the Borrowers as to such assignment. Upon the execution and delivery of appropriate assignment documentation, amendments and other documentation required by the Lender in connection with such assignment, and the payment by the -27- Assignee of the purchase price agreed to by the Lender and such Assignee, such Assignee shall be a party to this Agreement and shall have all of the rights and obligations of the Lender hereunder (and under any and all other guarantees, documents, instruments and agreements executed in connection herewith) to the extent that such rights and obligations have been assigned by the Lender pursuant to the assignment documentation between the Lender and such Assignee, and the Lender shall be released from its obligations hereunder and thereunder to a corresponding extent. Subject to Section 8.17 of this Agreement, the Lender may furnish any information concerning the Borrowers in possession of the Lender from time to time to perspective Assignees, provided that the Lender shall require any such perspective Assignees to agree in writing to maintain the confidentiality of such information.
(d) Any Non-U.S. For avoidance of doubt, the parties to this Agreement acknowledge that the Lender that could become completely exempt from withholding may at any time pledge all or any portion of its rights under the Loan Documents (including any tax, assessment or other charge or levy imposed by or on behalf portion of the United States Revolving Note) to any of the 12 Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof shall release the Lender from its obligations under any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative NotesLoan Documents.
(e) Each Non-U.S. Borrower, upon receipt of written notice from the Lender that holds Alternative Note(s) (an "Alternative Noteholder") (orin compliance with this Section 8.6, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver agrees to issue Revolving Notes to the Borrowers prior Lender to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each facilitate transactions of the forms and certifications required by Section 2.21(b)type described in paragraph (c) above.
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (First Marblehead Corp), Loan and Security Agreement (First Marblehead Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") ----------- participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212. 16, such Participant -------- shall have complied with the requirements of said Section and provided, further, -------- ------- that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may, in the ordinary course of its business and in -------- accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any affiliate thereof Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations -------- under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any affiliate thereofApproved Fund) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, -------- ------- that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 2 contracts
Sources: Credit Agreement (Lexar Media Inc), Credit Agreement (Lexar Media Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, Borrower the Lenders, the Administrative Agent, all future holders of the Notes Agent 74 69 and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and any assignment or transfer by any Lender of its rights or obligations under the Loan Documents must be made in compliance with this Section 10.6 (and any purported assignment in violation of this subsection shall be null and void).
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its lending or investment business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantLoan Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Loan Participant, (i) such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, and (iv) the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In , and (v) no event shall any Loan Participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except with respect to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date matters described in clauses (i) and (ii) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower second sentence of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationSection
10.1. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree Borrower agrees that each Loan Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.9 and 2.22 90 84 2.10 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, 2.10 such Loan Participant shall have complied with the requirements of said Section and provided, further, that no Loan Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Loan Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its lending or investment business and in accordance with applicable law, at any time and from time to time assign to any other Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, bank or financial institution or other entity (an "Assignee") ), all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, such assigning Lender (Assignor and, in the case of an Assignee that is not then a Lender or an affiliate thereofif required by this paragraph, by the Designated Borrower and the Administrative Agent) , and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and Agreement), unless otherwise agreed by the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding The Administrative Agent, which for purposes of any tax, assessment or other charge or levy imposed by or on behalf this Section 10.6(d) only shall be deemed an agent of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Administrative Agent referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance delivered to it and a register (the 75 70 "Register") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment Commitments of, and principal amount amounts 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 BorrowersBorrower, the Administrative Agent and the Lenders Lenders, shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticeLoan Documents.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofif required by Section 10.6(c), by the Designated Borrower and the Administrative Agent) , together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowersassigning Lender shall surrender any outstanding Loan Notes held by it all or a portion of which are being assigned, and the Borrower, at their its own expense, shall shall, upon a request to the Administrative Agent by the assigning Lender or the Assignee, as applicable, execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, outstanding Loan Notes of the assigning Lender, if any) a new Revolving Credit Note, Tranche A Term Loan Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant amount of such Assignee's Loans after giving effect to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may behereunder, a new Revolving Credit Loan Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A amount of such Lender's Loans after giving effect to such Assignment and Acceptance. Any such new Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Loan Note replaced thereby. Any Loan Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower marked "cancelled."
(f) To the extent requested by any Lender, the Borrower shall execute and deliver to such Lender an Initial Note dated the Closing Date substantially in the form of Exhibit F-1 hereto to evidence the portion of the Initial Loan made by such Lender and with appropriate insertions ("Original Initial Notes"). On each Interest Payment Date, to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender on such Interest Payment Date a note dated such Interest Payment Date substantially in the form of Exhibit F-1 hereto in a principal amount equal to such Lender's pro rata portion of such PIK Interest Amount and with other appropriate insertions (each a "Subsequent Initial Note" and, together with the Original Initial Notes, the "Initial Notes"). A Subsequent Initial Note shall bear interest from the date of its issuance at the same rate borne by all Initial Notes at the date of issuance and from time to time thereafter.
(ig) Each Unless converted to an Exchange Note and, to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender a Term Note dated the Initial Maturity Date substantially in the form of Exhibit F-2 hereto to evidence the Term Loan made on such date, in the principal amount of the Parent Initial Notes held by such Lender on such date and with other appropriate insertions (collectively, the Borrowers "Original Term Notes"). On or after the Initial Maturity Date, on each Interest Payment Date, to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender on such Interest Payment Date a Term Note dated such Interest Payment Date substantially in the form of Exhibit F-2 hereto in a principal amount equal to such Lender's pro rata portion of such PIK Interest Amount and with other appropriate insertions (each a "Subsequent Term Note" and, together with the Original Term Notes, the "Term Notes"). A Subsequent Term Note shall bear interest from the date of its issuance at the same rate borne by all Term Notes at the date of issuance and from time to time thereafter.
(h) The Borrower authorizes each Lender to disclose to any Loan Participant or Assignee (each, a "Transferee") and any prospective Transferee (to the extent such Persons agree to be 76 71 bound by the provisions of Section 10.15 hereof) any and all financial information in such Lender's possession concerning the Parent, the Borrowers Borrower and their respective its Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or assigning assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law law, provided that no such assignment, whether to a Federal Reserve Bank or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each caseother entity, shall not be unreasonably withheld release a Lender from any of its obligations hereunder or delayed), pledging its rights substitute any such Federal Reserve Bank or other entity for such Lender as a party hereto or permit an absolute assignment to occur other than in connection accordance with any Loan or Note to any other Personsuch provisions of this subsection.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Renters Choice Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(ba) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender▇▇▇▇▇▇'s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (w) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement; provided, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.10, 2.21 2.11 and 2.22 90 84 2.12 (and subject to the limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided provided, that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section 2.11 (including the requirements under Sections 2.11(e), 2.11(f) and 2.11(g) (it being understood that the documentation required under Sections 2.11(e), 2.11(f) and 2.11(g) shall be delivered to the participating Lender) as if it was a Lender that had acquired its interest by assignment; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.10, 2.11 or 2.12 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(cb) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates or a natural Person) (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided, that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant Borrower shall be deemed to an Assignment have consented to any such assignment unless it objects thereto by written notice to the Lender and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, Administrative Agent within five Business Days after having received notice thereof) shall be required in the case of an Assignee any assignment to a Person that is not then a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be (A) with respect to Tranche A Loans, in an aggregate principal amount of less than 500,000,000 Yen, and (B) with respect to Tranche B Loans, in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph .
(c) and paragraph (g) of this Section 11.6The Administrative Agent, the consent acting as a non-fiduciary agent of the Designated Borrower shall not be requiredsolely for tax purposes, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(hd) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration and processing fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.15), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(ie) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank or any other central bank in accordance with applicable law or law.
(iif) with The Borrower, upon receipt of written notice from the prior consent relevant ▇▇▇▇▇▇, agrees to issue notes to any Lender requiring notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Sources: Term Loan Agreement (Bungeltd)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentK&F, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers may not assign or transfer any of its their rights or obligations under this Agreement (other than as permitted by Section 10.15) without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrowers or the Administrative Agent (but with notice to the Administrative Agent), in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 would, pursuant to Section 10.1, require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of Lender from which such Participant purchased its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationparticipating interest. The Borrowers agree that if amounts outstanding owing by either of the Borrowers under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower Borrowers and the Administrative Agent and, in the case of any assignment of Commitments, the written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such the consent of the Borrowers need not be obtained with respect to any assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Dateor to LCPI), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrowers, the Administrative Agent or the Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower Borrowers and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 3,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement) and (ii) no such assignment (other than in the case of an assignment of all of a Lender's interests under this Agreement) shall result in such Lender's Commitments, together with the Commitments of such Lender's affiliates, being reduced to less than $1,000,000, in each case unless otherwise agreed by the Borrowers and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.13, 2.14, 10.5 and 10.14 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Borrowers shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrowers marked "canceled". The Register shall be available for inspection by the Borrowers or any Lender (with respect to any entry relating to such Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment (which shall be made by the Assignor or Assignee, as agreed between them) to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment)(except that no such registration and processing fee shall be payable (yx) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or to LCPI or (zy) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders Administrative Agent and the Designated BorrowerBorrowers. On or prior to such effective date, the Borrowers, at their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(bii) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsCredit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the principal ofstated rate, or forgive any portion, or postpone the date for the payment, of any interest onor fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the Notes aggregate amount of the Commitments of any Lender or any fees payable hereunder, postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoan, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 13.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; , provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(ciii) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate Affiliate (with the consent of the Borrower if any increased costs would result therefrom) thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, which in each case, case shall not be unreasonably withheld withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datemake any filing or registration with, any Governmental Authority), to an additional bankbank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Credit Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than that, except in the case of an assignment of all of a Lender's interests under this Agreement Agreement, unless otherwise agreed to by the Borrower and the Notes). Such Administrative Agent, no such assignment need not to an Assignee (other than any Lender or any Affiliate thereof) shall be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans in an aggregate principal amount of the assigning Lenderless than $5,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Agreement to the contrary, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any of the events described in Section 8(f) 11.5 shall have occurred and be continuingcontinuing with respect to the Borrower.
(db) Any Non-U.S. Nothing herein shall prohibit any Lender that could become completely exempt from withholding 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 Borrower hereby agrees that, upon request of any taxLender at any time and from time to time after the Borrower has made its initial borrowing hereunder, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due Borrower shall provide to such Non-U.S. Lender under this Agreement if Lender, at the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower's own expense, and the Borrowers agree thereupona promissory note, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in C-1 or C-2, as the case of Obligations in respect of Tranche A may be, evidencing the Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Loans and Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesrespectively, owing to such Lender.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(gc) The Administrative Agent Agent, on behalf of the Borrower, shall maintain at its the address of the Administrative Agent referred to in Section 11.2 13.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, 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 Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Credit Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(hi) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(ie) Each of Subject to Section 13.16, the Parent and the Borrowers Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers Borrower and their respective its Affiliates which that has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of , provided that neither the Administrative Agent and the Borrowers (which, in each case, nor any Lender shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note provide to any other Person.Transferee or prospective Transferee any of the Confidential Information unless such person shall have previously executed a Confidentiality Agreement in the form of Exhibit H.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentCompany, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent Company nor the Borrowers Borrower may assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Credit Party therefrom, except to the extent that such amendmentfor those matters specified in clauses (i), waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date (ii) and (iii) of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than proviso in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section 2.20 and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate Affiliate thereof or, with the written consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments and Revolving Credit Loans only, the written consent of the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayeddelayed and shall not be required in connection with an assignment involving LCPI or any of its Affiliates) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent or the Swing Line Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender or any affiliate Affiliate thereof, including, without limitation, in the case of any Lender that is an investment fund which is regularly engaged in making, purchasing or investing in loans or securities, any other such fund which is under common (or affiliated) management with such Lender) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests rights under this Agreement Agreement) be in an aggregate principal amount of less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Notes)Administrative Agent) and (ii) each partial assignment of any Class of Commitment and/or Loans shall be made as an assignment or a proportionate part of all the assigning Lender's rights and obligations of such Class of Commitments and Loans under this Agreement. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period or to LCPI or any of 120 days following the Closing Date its Affiliates or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lender (including, without limitation in the case of any Lender that is an investment fund which is regularly engaged in making, purchasing or investing in loans or securities, any other such fund which is under common (or affiliated) management with such Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Commitment or Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Commitment or Term Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Commitment or Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Person including, without limitation, any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each LenderLender and any purported assignment or transfer without such consent shall be null and void.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds other entities (other than a natural person, the Borrower or any of its Affiliates or Subsidiaries, or a Person that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, has identified in each case, shall not be unreasonably withheld or delayed), any other entities a notice to the Lenders as a Defaulting Lender) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 10.7 as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section 2.15, 2.16 or 2.17 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower Administrative Agent, the Borrower, any Swingline Lender and the Administrative Agent any Issuing Lender (which, in each case, shall not be unreasonably withheld or delayeddelayed and, provided that, no consent of the Borrower shall be required if a Default or Event of Default has occurred and is continuing) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (other than a natural person, the Borrower or any of its Affiliates or Subsidiaries, or a Person that the Administrative Agent has identified in a notice to the Lenders as a Defaulting Lender) (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent, the Borrower or an Issuing Lender is required pursuant to the foregoing provisions, by such party) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent For purposes of the Designated Borrower minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingaggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (but only, in the case of a Lender, at the Administrative Agent’s Office and with respect to any entry relating to such Lender’s Commitments, Loans, L/C Obligations and other Obligations), at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for or to a period of 120 days following the Closing Date Barclays Entity or (z) in the case of an Assignee which is already an affiliate or Related Fund of a Lender or is an affiliate of a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, Notes of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Loans assumed or acquired by it pursuant to such Assignment and Acceptance Assumption and, if the assigning Lender Assignor has retained a Revolving Credit CommitmentLoans, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Loans retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Iconix Brand Group, Inc.)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by Borrower or any Loan Party of its Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such AssigneeAssignee and such Assignor, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 3,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement or if a Default has occurred and is continuing and (ii) such Assignee shall have complied with the Notes)requirements of Section 2.14 of this Agreement. Such For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. No Assignee shall be entitled to receive a greater amount pursuant to Section 2.14 of this Agreement than the Assignor would have been entitled to receive in respect of the assigned rights and obligations had no such assignment occurred. Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f10.6(c). Notwithstanding anything in this Section 10.6(c) or elsewhere in this Agreement to the contrary, in the case of any assignments contemplated by this Section 10.6(c) occurring after CALYON New York Branch’s primary syndication of the Loans, no Assignee shall be entitled to receive any greater amount pursuant to any such Section hereof than the Assignor would have occurred and be continuingbeen entitled to receive in respect of the amount of the Loans transferred by such Assignor to such Assignee had no such transfer occurred.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan shall be available for inspection by effective only upon appropriate entries with respect thereto being made in the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticeRegister.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Each of the prior consent of Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Arrangers, the Administrative Agent, all future holders of the Notes Loans and Multicurrency Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Arrangers, the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower, the Arrangers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Notwithstanding the foregoing, no Lender may participate its interest to a competitor of the Principal or the Borrower.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Affiliated Fund of the assigning Lender or another Lender thereof (each, an “Eligible Assignee”) or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Multicurrency Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit DD (an “Assignment and Assumption”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a the Borrower, the Administrative Agent or the Multicurrency Issuing Lender or an affiliate thereofthe Swing Line Lender is required pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofor Affiliated Fund of any Lender) shall be in an aggregate principal amount of less than $2,000,000 1.0 million (in the case of Term Loans) and $5.0 million (with respect to all other Loans and Commitments) (other than in the case of (i) an assignment of all of a Lender's ’s interests under this Agreement and (ii) simultaneous assignments to or by Approved Funds, which shall be aggregated for this purpose), unless otherwise agreed by the Notes)Borrower and the Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(fDefault under Sections 8.1(a) or 8.1(f) shall have occurred and be continuing. Notwithstanding the foregoing, no Lender may assign its interest to a competitor of the Principal or the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with any tax forms required by Section 2.20 and payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to a ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a LenderLender or an Affiliated Fund (and in the case of assignments on the same day from a Lender to more than one fund managed or advised by the same investment advisor (which funds are not then Lenders hereunder) and simultaneous assignments by Approved Funds, only a single $3,500 registration and processing fee shall be payable for all such assignments by such Lender to such funds)), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee Assignor or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A applicable Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B LoanLoans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with law. In the prior case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent and the Borrowers (whichAgent, in each case, shall not be unreasonably withheld assign or delayed), pledging pledge all or any portion of its rights in connection with under this Agreement, including the Loans and Notes or any Loan or Note other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other Personrepresentative of holders of, obligations owed or securities issued, by such fund as security for such obligations or securities; provided that any foreclosure or similar action by such trustee or representative shall be subject to the provisions of this Section 10.6 concerning assignments.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent Holdings nor the Borrowers Borrower may assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of the Agents and each LenderLender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void).
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Section 9.
1. Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section 2.11 and Section 8.12, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in without the ordinary course consent of its business and any Loan Party, in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld withheld, conditioned or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing DateAdministrative Agent or its affiliates), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DJ (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that Borrower or the Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than than, in each case, in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11, 8.12 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision For purposes of this paragraph (c) and paragraph (g) of the minimum assignment amounts set forth in this Section 11.69.6(c), the consent of the Designated Borrower multiple assignments by two or more Related Funds shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingaggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Note evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no each such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderother Person), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit applicable Note, Tranche A Term Note and/or Tranche B Term Note, as the case may beif any, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, or Notes to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Commitment or Loan and/or Tranche B Loan, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Commitment or Loan, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, or Notes to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B LoanCommitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and Borrower, the Borrowers option to provide to Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (x) with notice to, but without the prior written consent of, Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld, conditioned or delayed), pledging its rights in connection with any Loan or Note ) to any other Personfinancial institutions providing liquidity or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (y) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to Borrower may be disclosed only with Borrower’s consent which will not be unreasonably withheld, conditioned or delayed. This Section 9.6(g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of Agent and each LenderLender (and any attempted assignment or transfer by Borrower without such consent shall be null and void).
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Section 9.1. Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.8(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section 2.11 and Section 8.11, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, unless the participation was made with Borrower’s consent or the greater amount results from a change in Requirements of Law occurring after the date the participation was made. Each Lender that sells a participation shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments or the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have an obligation to disclose all or an portion of a Participant Register (including the identity of an Participant or any information relating to a Participant’s interest in an Loans or other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Loans or other obligations are in registered form under Section 5f.103-1(c) of the U.S. Treasury regulations.
(c) Any Lender (an “Assignor”) may, in without the ordinary course consent of its business and any Loan Party or any Specified Party, in accordance with applicable lawlaw and upon written notice to Agent, at any time and from time to time assign to any Lender or any affiliate or Related Fund thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld withheld, conditioned or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing DateAgent or its affiliates), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DJ (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that Borrower or Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than than, in each case, in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by Borrower and Agent, and provided, further, that the Notesassignor Lender or Assignee has paid to Agent a processing and recordation fee in the amount of $3,500.00 (which fee may be waived or reduced in the sole discretion of Agent). Such assignment need not , provided, however, that only one such fee shall be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loanspayable in the case of concurrent assignments to Persons that, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lenderafter giving effect to such assignments, will be Related Funds. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11, 8.11 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision For purposes of this paragraph (c) and paragraph (g) of the minimum assignment amounts set forth in this Section 11.69.7(c), the consent of the Designated Borrower multiple assignments by two or more Related Funds shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingaggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxAgent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and principal amount and stated interest 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Note evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by Agent to Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.7(c), by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no each such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderother Person), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit applicable Note, Tranche A Term Note and/or Tranche B Term Note, as the case may beif any, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable or Notes to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Commitment or Loan and/or Tranche B Loan, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Commitment or Loan, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, or Notes to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B LoanCommitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Original Closing Date or the Closing Date, as applicable, and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: Credit Agreement (Trans Energy Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (w) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 (and subject to the limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section 2.13) (including the requirements under Sections 2.13(e), 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.11, 2.12 or 2.13 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law made subsequent to the date hereof that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates or a natural Person) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not then a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan or Commitment, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan or Commitment accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration fee not payable with respect to assignments to an Assignor’s Affiliate and processing such fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Parent and the Borrowers authorizes Borrower, each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Sources: Term Loan Agreement (Bungeltd)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersCompany, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that neither the Parent nor the Borrowers Company may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrowers, the other Loan Parties, and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any Participant action hereunder or under any other Loan Document except that such participation have any right Lender may agree with the Participant that it will not, without the consent of the Participant, agree to approve any amendment (i) extend the term of such Lender's related Commitment or waiver extend the amount or date of any provision scheduled reduction of such Commitment pursuant to Section 2.06 (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any Loan Documentfee hereunder payable to the participant, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon, or any fee hereunder payable to the participant, to a level below the rate at which the participant is entitled to receive such interest or fee or (v) consent to any departure by modification, supplement or waiver hereof or of any of the other Loan Party therefrom, except Documents to the extent that such amendmentthe same, waiver or under Section 10.01 hereof, requires the consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date of each Lender. Each of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement Parent and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree Company agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.07(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.202.11, 2.21 2.12 and 2.22 90 84 2.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, 2.13 such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time may assign to any Lender one or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") more assignees all or any part a portion of its rights and obligations under this Agreement, the Letters Agreement (including all or a portion of Credit its Commitment and the Notes pursuant Loans at the time owing to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Registerit); provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofi) shall be in an aggregate principal amount of less than $2,000,000 (other than except in the case of an assignment to a Lender or any Affiliate thereof or an assignment by the Administrative Agent or the Syndication Agent in connection with the syndication of all the Loans, each of a Lender's interests under this Agreement the Parent and the Notes). Such Administrative Agent must give their prior written consent to such assignment need (which consent shall not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptanceunreasonably withheld), (xii) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, except 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 assigning Lender shall cease assignment to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time time, subject to the consent of the Syndication Agent, assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ for assignments involving ▇▇▇mercial ▇▇▇ Commercial Paper Inc. for a period of 120 days following the Closing DateInc.), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, such assigning Lender Assignor, the Syndication Agent and the Administrative Agent (and, in where the case consent of an Assignee that the Borrower is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative AgentBorrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower, the Syndication Agent and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Lender, an Assignee and the Syndication Agent (and, in the case of an Assignee that is not then a Lender or an affiliate thereofthereof or a Person under common management with such Lender, by the Designated Borrower Borrower, the Administrative Agent and the Administrative AgentIssuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial ▇▇▇ Commercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a LenderInc.), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Advances and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan Advance owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Advance for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower, the Arranger and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Advance Party therefrom, except to the extent that such amendment, waiver or consent would reduce require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent each “directly modified” Lender pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.01(a). The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Advances are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a8.06(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.08, 2.21 2.09, 2.11 and 2.22 90 84 10.07 with respect to its participation in the Commitments and the Loans Advances outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. In addition, each transferor Lender selling a participation to a Participant under this Section 10.06(b): (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such Participant, specifying such Participant’s entitlement to payments of principal and interest with respect to such participation, and (ii) shall collect from each such Participant the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such Participant were a Lender under Section 2.11.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower (to the extent no Default or Event of Default is then-continuing), which consent of the Borrower shall not be unreasonably withheld or delayed, and the Administrative Agent and, in the case of any assignment of Revolving Commitments, the written consent of the Issuing Bank (which, in each case, shall not be unreasonably withheld or delayed) (provided (y) that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period the Administrative Agent or its affiliates and (z) the consent of 120 days following neither the Closing DateAdministrative Agent nor the Borrower need be obtained with respect to any assignment of funded Term Advances), to an additional bank, financial institution or other entity (an "Assignee") Eligible Assignee all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit DC, executed by such Assignee, Eligible Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent or the Issuing Bank is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (A) no such assignment to an Eligible Assignee (other than than, in each case, any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of the Term Loan Facility) or $5,000,000 (in the case of the Revolving Credit Facility), unless (1) otherwise consented to by the Borrower (so long as no Default or Event of Default is then-continuing) and the Administrative Agent, which such consents shall not be unreasonably withheld or delayed or (2) such assignment represents an assignment of all of a Lender's ’s interests under this Agreement and (B) if the NotesAssignor shall retain any Advances or Commitments after giving effect to such assignment such Advances and Commitments shall, unless otherwise agreed by the Borrower and the Administrative Agent, be in an aggregate principal amount of not less than $1,000,000 (in the case of the Term Loan Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Such Any such assignment need not be ratable as among any Tranche A the Revolving Credit Facility and Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacility. Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Eligible Assignee thereunder shall be a party hereto (with respect to the interest assigned) and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Advances as set forth therein, in addition to any rights and obligations theretofore held by it as a Lender, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.09, 2.11 and 10.04 and 10.07 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.02 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names name and addresses address of the Lenders (including Alternative Noteholders) each Lender and the Commitment ofeach Issuing Bank, each Lender’s Commitment, each Lender’s and each Issuing Bank’s interest in each Advance, each Letter of Credit and each Letter of Credit Obligation, and principal amount in the right to receive any payments hereunder and any assignment of the Loans owing to, each Lender from time to timeany such interest or rights. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks shall treat each Person whose name is recorded in the Register as the owner of the Loan Advances, any Notes evidencing such Advances and any Reimbursement Obligation recorded therein for all purposes of this Agreement. Any assignment of any Advance, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of an Advance evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Advance, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Eligible Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower, any Lender (with respect to any entry relating to such Lender’s Advances) or any Lender Issuing Bank (with respect to any entry relating to the Borrower’s Letter of Credit Obligations owed to such Issuing Bank) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Eligible Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.06(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) if required by Lehm▇▇ ▇▇▇mercial Paper Inc. for the Administrative Agent and, in any case treating multiple, simultaneous assignments by or to two or more Related Funds as a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lendersingle assignment), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A PIK Obligation Notes and/or applicable Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term PIK Obligation Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Eligible Assignee (or, in the case of any Alternative Note, payable to such Assignee or and its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Advances, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance Assumption and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan PIK Obligation and/or Tranche B LoanTerm Advances, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term PIK Obligation Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or Assignor and its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan PIK Obligation and/or Tranche B Loanapplicable Term Advances, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Advances and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Advances and Notes, including any pledge or which has been delivered assignment by a Lender of any Loan or Note to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law, (ii) with any holder of, or trustee for the prior consent benefit of, the holders of such Lender’s securities or (iii) any SPC to which such Lender granted an option pursuant to clause (g) below.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of a Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.06(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld) to any financial institutions providing liquidity and/or credit support to or delayedfor the account of such SPC to support the funding or maintenance of Advances, and (B) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Advances outstanding at the time of such proposed amendment. In addition, each Granting Lender granting an SPC the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), pledging of each SPC which has funded all or any part of any Advance that such Lender would have otherwise been obligated to make to the Borrower pursuant to this Agreement, specifying such SPC’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such SPC receives payments with respect to such funded Advance, from each SPC the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such SPC were a Lender under Section 2.11, and each SPC that assigns all or a portion of its rights interests in connection with any Loan or Note Advance to any other Person.financial institution pursuant to this Section 10.06(g), (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such financial institution, specifying such financial institution’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such financial institution receives payments with respect to such funded Advance, from each such financial institution the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such financial institution were a Lend
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Interstate Hotels & Resorts Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and issuers of, and participants in, Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without notice to or the consent of the BorrowersBorrower or the Agents, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan, Commitment or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers Loan Parties and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender that sold the participating interest to such Participant would have been entitled to receive in respect of the amount of the participation transferred sold by such transferor Lender to such Participant had no such transfer sale occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate thereof affiliate, Related Fund or Control Investment Affiliate of any Lender or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent of the Administrative Agent need be obtained by Lehm▇▇ either ▇▇▇mercial Paper Inc. for a period ▇▇ Fargo or KeyBank and provided further that the consent of 120 days following the Closing DateBorrower shall not be required if an Event of Default has occurred and is continuing), to an additional bank, or financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or Lender, any affiliate thereofthereof or Related Fund of any Lender) shall be in an aggregate principal amount of less than, and the aggregate principal amount retained by the assigning Lender shall not (unless such assigning Lender is thereby assigning all of its interest under this Agreement) be less than $2,000,000 (5,000,000 unless otherwise agreed to by the Borrower and the Administrative Agent, in each case other than in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAgreement. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Agent, or by any Lender (with respect to any entry relating to such Lender’s Loans), at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit NoteNote of the assigning Lender, Tranche A Term or in exchange for the Swing Line Note and/or Tranche B Term of the assigning Swing Line Lender, if applicable) a new Revolving Credit Note (or Swing Line Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment (or the Swing Line Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, ) assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beCommitment upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, (x) any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law and (y) any pledge or assignment by a Lender that is a fund that invests in bank loans to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities; provided that any foreclosure or similar action by any such holder, trustee or representative shall be subject to the provisions of Section 10.6(c) concerning assignments.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.18, 2.21 2.19 and 2.22 90 84 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.19, such Participant shall have complied with the requirements of said Section Section, including Sections 2.19(d) and (e), and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(ci) Any Subject to the conditions set forth below, any Lender may(an "Assignor") 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 of: (A) the Borrower (such consent not to be unreasonably withheld), provided that no consent of the Borrower shall be required for an assignment to a Lender, a Lender Affiliate, an Approved Fund, or, if an Event of Default has occurred and is continuing, any other Person; (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, a Lender Affiliate or an Approved Fund; and (C) the Issuing Lender, provided that no consent of the Issuing Lender shall be required for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional conditions: except in the case of an assignment to a Lender, a Lender Affiliate or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender's Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default under Section 8(a) or (f) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any. For the purposes of this Section 10.6, "Approved Fund" means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then administered or managed by (a) a Lender, (b) a Lender Affiliate or (c) an entity or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of entity that administers or manages a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and permitted assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15(e) as though it were a Lender.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, any Agent or any affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which consents shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower or Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than to any Lender or any affiliate affiliate, any Agent or any affiliate, Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), in each case, unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.14, 2.15 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an a duly completed Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to a ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld) to any financial institutions providing liquidity and/or credit support to or delayed)for the account of such SPC to support the funding or maintenance of Loans, pledging and (B) disclose on a confidential basis any non-public information relating to its rights in connection Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or Note withhold any consent applicable to such Loan, and the other parties to the Loan Documents shall be entitled to rely conclusively on the advice of such Granting Lender as to which of such Granting Lender or such SPC is entitled to grant or withhold such consent. This paragraph (g) may not be amended without the written consent of any other PersonSPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parentof, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither that, subject to Section 8.2(a), the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(bi) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant"“Participants”) participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Credit Loan for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Revolving Credit Loan or reduce the principal ofstated rate, or forgive any portion, or postpone the date for the payment, of any principal, interest onor fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), increase the Notes or aggregate amount of the Revolving Credit Commitments of any fees payable hereunderLender, postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsRevolving Credit Loan, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 11.8 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.10, 2.21 2.11 and 2.22 90 84 4.3 with respect to its participation in the Revolving Credit Commitments and the Revolving Credit Loans outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(cii) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to (A) any Lender or any affiliate Affiliate thereof or, or Approved Fund with respect thereto (with the consent of the Designated Borrower if any increased costs would result therefrom) or, (B) with the consent of the Borrower and the Administrative Agent (which, which in each case, case shall not be unreasonably withheld or delayed) (provided that no , it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Dateof, or make any filing or registration with, any Governmental Authority), to an additional bankbank or fund that is regularly engaged in making, purchasing or investing in loans or securities or a financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Credit Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit Dprescribed from time to time by the Loan Syndications and Trading Association, with such modifications as the Administrative Agent shall require from time to time, executed by such Assignee, Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender Lender, an Affiliate thereof or an affiliate thereofApproved Fund with respect thereto, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than that, except in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement, unless otherwise agreed to by the Administrative Agent, no such assignment to an Assignee (other than any Lender, any Affiliate thereof or any Approved Fund with respect thereto) and the Notes). Such assignment need not its Affiliates shall be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and in an aggregate principal amount less than $2,500,000 in respect of Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderLoans. Upon such execution, delivery, acceptance and recording, from and after recording (referred to as the effective date determined pursuant to such “Assignment and AcceptanceEffective Date”), (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment as set forth therein, therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Agreement to the contrary, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(db) Any Non-U.S. Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Revolving Credit Loans to any Federal Reserve Bank in accordance with applicable law, and any Lender that could become completely exempt is an investment fund that invests in bank loans may, without the consent of the Borrower or the Administrative Agent, pledge or assign all or any portion of its Revolving Credit Loans and promissory notes evidencing such Revolving Credit Loans to any trustee or any other representative of holders of obligations owed or securities issued by such investment fund as security for such obligations or securities; provided that no such pledge or assignment shall release a Lender from withholding any of its obligations hereunder, substitute any such pledgee or assignee for such Lender as party hereto or increase the obligations of the Borrower hereunder. In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any taxLender at any time and from time to time after the Borrower has made its initial borrowing hereunder, assessment or other charge or levy imposed by or the Borrower shall provide to such Lender, at the Borrower’s own expense, a promissory note in form satisfactory to such Lender, acting reasonably, evidencing the Revolving Credit Loans owing to such Lender.
(c) The Administrative Agent, on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance and New Lender Supplement delivered to it and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Revolving Credit Commitment of, and principal amount of the Revolving Credit Loans (whether or not evidenced by a promissory note) owing to, each Lender from time to time. The Notwithstanding Section 2.5, the entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Revolving Credit Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Credit Documents, notwithstanding any notice to the contrary. Any assignment of any Revolving Credit Loan or other obligation hereunder (whether or not evidenced by a promissory note) shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment of all or part of a Revolving Credit Loan evidenced by a promissory note shall be registered on the Register only upon surrender for registration of assignment or transfer of such promissory note evidencing such Revolving Credit Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes in the same aggregate principal amount shall be issued to the designated Assignee and the old promissory notes shall be returned by the Administrative Agent to the Borrower marked “cancelled”. The Register shall be available for inspection by the Borrowers or any Lender Borrower at any reasonable time and from time to time upon reasonable prior notice.
(hd) Upon The Administrative Agent shall (i) upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender Lender, an Affiliate thereof or an affiliate thereofApproved Fund with respect thereto, by the Designated Borrower and the Administrative Agent) Borrower, together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebyRegister.
(ie) Each of Subject to Section 11.17, the Parent and the Borrowers Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee any and all financial information in such Lender's ’s possession concerning the Parent, the Borrowers Borrower and their respective its Affiliates which that has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's ’s credit evaluation of the Parent, the Borrowers Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of ; provided that neither the Administrative Agent and the Borrowers (which, in each case, nor any Lender shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note provide to any other PersonTransferee or prospective Transferee any of the Confidential Information unless such person shall have previously executed a Confidentiality Agreement substantially in the form prescribed from time to time by the Loan Sales and Trading Association.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, Holdings, Intermediate Holdings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate Affiliate or Related Fund thereof or, with the consent of the Designated Borrower and (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for with respect to any assignment of Term Loans, unless such assignment is to a period Person that is a motion picture exhibitor or an Affiliate or related entity of 120 days following a motion picture exhibitor, in which case such assignment shall require the Closing Dateconsent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent or the Issuing Lenders is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to a L▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender▇▇ Entity), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentBorrower, the BorrowersHexalon Entities, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANT") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided PROVIDED that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section and providedPROVIDED, furtherFURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "ASSIGNOR") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "AssigneeASSIGNEE") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that PROVIDED that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, except in the case of an assignment of all of a Lender's interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Any such assignment shall be ratable as between this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Merger Credit Commitments and/or Revolving Credit Loans of the assigning LenderAgreement. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the "RegisterREGISTER") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each Hexalon Entity, the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; PROVIDED, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Sources: Tender Facility Credit Agreement (Rodamco North America N V)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (w) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 (and subject to the limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section 2.14 (including the requirements under Sections 2.14(e), 2.14(f) and 2.14(g) (it being understood that the documentation required under Sections 2.14(e), 2.14(f) and 2.14(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law made subsequent to the Closing Date that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any 76 portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates or an Ineligible Institution) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not then a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing.8.6(c). 77
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan or Commitment, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan or Commitment, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration fee not payable with respect to assignments to an Assignor’s Affiliate and processing such fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.18), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) The Borrower, upon receipt of written notice from the relevant ▇▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Parent and the Borrowers authorizes Borrower, each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Revolving Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests ----------- in any Revolving Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Revolving Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsRevolving Loans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Revolving Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating -------- interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Revolving Commitments and the Revolving Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21-------- 2.16, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or -------- any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any -------- affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Revolving Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Commitment of, and the principal amount of the Revolving 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Revolving Loans and any Notes evidencing the Revolving Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Revolving Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Revolving Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Revolving Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Revolving Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Revolving Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, the Issuing Lenders, all future holders of the Notes Loans and Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers and Borrower, the Administrative Agent and the Issuing Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's ▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.15(d) (it being understood that the documentation required under Section 2.15(d) shall be delivered to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (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) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and Borrower, the Administrative Agent and, each Issuing Lender and the Swingline Lender; provided, however, that no consent of any Issuing Lender or the Swingline Lender shall be required for an assignment of all or any portion of aan Incremental Term Loan, New Term Loan or New Term III Loan (which, in each case, shall not be unreasonably withheld withheld, delayed or delayedconditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (provided that no such ii) the Borrower’s consent need shall not be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for considered to be unreasonably withheld, delayed or conditioned if the Borrower withholds, delays or conditions its consent because, among other factors, it is concerned about a period of 120 days following the Closing Datepotential Assignee’’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 10,000,000, in each case except in the case of an assignment of all of a Lender's ▇▇▇▇▇▇’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) 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 BorrowersBorrower, the Administrative Agent Agent, the Issuing Lenders and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a promissory note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the promissory note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered assignment by a Lender to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior secure obligations to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant ▇▇▇▇▇▇, agrees to issue a promissory note to any Lender requiring such a note to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Agreement (Tegna Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Arranger, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Arranger, the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff set-off in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section and Section 9.12, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lenders and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. the Administrative Agent or its affiliates, (y) the consent of neither the Administrative Agent nor the Borrower need be obtained with respect to any assignment of funded Term Loans and (z) no such consent need be obtained for the assignment by a period of 120 days following the Closing DateLender to its affiliates), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DD (an "Assignment and Acceptance"), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent, the Issuing Lenders or the Swing Line Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (with respect to Term Loans and $5,000,000 with respect to the Revolving Credit Facility (other than than, in each case, in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred exist and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (if required by the Administrative Agent and, in any case, treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers (whichBorrower, in each case, shall not be unreasonably withheld the option to provide to the Borrower all or delayed), pledging its rights in connection with any part of any Loan or Note that such Granting Lender would otherwise be obligated to any other Person.make to the Borrower pursuant to this Agreement; provided that (i) nothing
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersCompany, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Extension of Credit for all purposes under this Agreement and the other Loan Documents, and the Borrowers Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party the Company therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Company agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(asubsection 12.7(a) as fully as if it were a Lender hereunder. 59 The Borrowers Company also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20subsections 5.4, 2.21 5.5 and 2.22 90 84 5.6 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Company and the Administrative Agent (which, which in each case, case shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datewithheld), to an additional bank, bank or financial institution or other entity ("an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower Company and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided that no that, in the case of any such assignment to an Assignee (other than any Lender additional bank or any affiliate thereof) shall be in an financial institution, the aggregate principal amount of the Commitment being assigned and, if such assignment is of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement the rights and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans obligations of the assigning Lender, the aggregate amount of the Commitment remaining with the assigning Lender are each not less than $5,000,000 (or such lesser amount as may be agreed to by the Company and the Administrative Agent). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (ge) of this Section 11.6subsection, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Company shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f10(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect Company, maintain at the address of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 subsection 12.2 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 (including Alternative Noteholders) and the Commitment Commitments of, and principal amount amounts of the Committed Rate Loans owing by the Company to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersCompany, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Committed Rate Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Committed Rate Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.. 60
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower Company and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebyCompany.
(if) Each of the Parent and the Borrowers The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee Transferee, subject to the provisions of subsection 12.16, any and all financial information in such Lender's possession concerning the Parent, the Borrowers Company and their respective its Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Company in connection with such Lender's credit evaluation of the Parent, the Borrowers Company and their respective its Affiliates prior to becoming a party to this Agreement, provided, that the Lenders shall take such steps as reasonably necessary to ensure that confidential information will be treated in a confidential manner as required by subsection 12.16.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging or assigning any Note Loan to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: Credit Agreement (Harman International Industries Inc /De/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentBorrowers, the Borrowersother Credit Parties, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower or any other Credit Party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender mayshall have the unrestricted right at any time and from time to time, and without the consent of the Borrowersor notice to any Borrower or any other Credit Party, in the ordinary course of its business and in accordance with applicable law, at any time sell to grant to one of more banks or more banks, other financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note or all of the Loans held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale grant by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement whether or not upon notice to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and Borrowers or the other Loan DocumentsCredit Parties, and the Borrowers and the Administrative Agent other Credit Parties shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Any Lender may furnish any information concerning the Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 with respect to in its participation in the Commitments and the Loans outstanding possession from time to time as if it was a Lender; to prospective Participants, provided that, in that the case of Section 2.21, such Participant Lenders shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to require any such Section than prospective Participant to agree in writing to maintain the transferor Lender would have been entitled to receive in respect confidentiality of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurredinformation.
(c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any of its affiliates or to any Lender or any affiliate thereof oror to an additional bank or financial institution (an "Assignee"), in the case of any assignment relating to Commitments to such an additional bank or financial institution with the consent of the Designated Borrower Borrowers and the Administrative Agent (which, which consents in each case, case shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datewithheld), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DI, executed by such Assignee, such assigning Lender (and, in to the case of an Assignee that is not then a Lender or an affiliate thereofextent required, by the Designated Borrower Borrowers and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph Section and subsection (cd) and paragraph (g) of this Section 11.6below, the consent of the Designated Borrower Borrowers shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) 7 shall have occurred and be continuingcontinuing (including during any grace or cure period).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect Borrowers, maintain at the address of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest errorerror and provided such entries are made in good faith, and the Borrowers, 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 or under any Note as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder or under any Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of any assignment relating to Revolving Credit Loans to an Affiliate of such assigning Lender or to an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower Borrowers and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (iI) promptly accept such Assignment and Acceptance and (iiII) on the effective date determined pursuant thereto thereto, record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the The Borrowers authorizes authorize each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee approved by the Borrowers in accordance with Section 9.6(c), subject to the provisions of Section 9.15, any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided, however, that no such pledge or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, assignment shall not be unreasonably withheld release such Lender from such Lender's obligations hereunder or delayed), pledging its rights in connection with any Loan or Note to under any other PersonLoan Document.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes parties hereto and their respective successors and assigns, except that (i) neither the Parent Company nor the Borrowers any Subsidiary Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void), except that pursuant to Section 2.23(c) any Subsidiary Borrower may assign its rights and obligations hereunder to the Company pursuant to an assignment and assumption agreement in form and substance reasonably satisfactory to the Managing Administrative Agent, and (ii) no Lender may assign or transfer any of its rights or obligations under this Agreement to a Defaulting Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant"other than Ineligible Persons) (“Participants”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment or Swing Line Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Managing Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event No Lender shall be entitled to create in favor of any Participant under any Participant, in the participation agreement pursuant to which such participation have Participants participating interest shall be created or otherwise, any right to approve any amendment or waiver of any provision of 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 vote on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by approve any Borrower of any of its rights and obligations under matter relating to this Agreement and the or any other Loan DocumentsDocument except for those specified in clauses (i), release all or a substantial portion (ii), (iii) and (v) of the Collateral (other than in connection with any sale or other disposition of assets permitted by proviso to Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Company and each Subsidiary Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff set-off in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(asubsection 9.7(a) as fully as if it were a Lender hereunder. The Borrowers Company also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13, 2.15 and 2.22 90 84 2.16 with respect to its participation in the Commitments, Swing Line Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the applicable Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender one or any affiliate thereof ormore banks or other financial institutions, with including a finance company or fund (whether a corporation, partnership or other entity) which is engaged in making, purchasing or otherwise investing in commercial loans in the consent ordinary course of the Designated Borrower its business, and the Administrative Agent having total assets in excess of $500,000,000 (which, in each case, shall not be unreasonably withheld or delayedother than Ineligible Persons) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date)bank or financial institution, to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this AgreementAgreement and the other Loan Documents; provided, however, that
(i) except in the case of an assignment to a Lender or, subject to giving prior written notice thereof to the Company and the Managing Administrative Agent, an Affiliate of a Lender which is a bank or financial institution, each of the Managing Administrative Agent, each Swing Line Lender and (except when a Default or Event of Default shall have occurred and be continuing) the Company must give its consent to such assignment (which in each case shall not be unreasonably withheld or delayed); provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Managing Administrative Agent within ten Business Days after written notice of such assignment shall have delivered to the Company to the attention of its Treasurer and Assistant Treasurer;
(ii) the rights and obligations of each Swing Line Lender relating to its Swing Line Loans and Swing Line Commitment may be assigned or retained, at its option, independently of any of its other rights and obligations under the Loan Documents in connection with any assignment otherwise permitted hereunder;
(iii) in the case of any assignment to any Assignee that is not a Lender or an Affiliate thereof, the Letters sum of Credit the aggregate principal amount of the Loans and the Notes pursuant aggregate amount of the Commitments and Swing Line Commitments being assigned and, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans and the aggregate amount of the Commitments and Swing Line Commitments remaining with the assigning Lender are each not less than $5,000,000 (or such lesser amount as may be agreed to by the Company and the Managing Administrative Agent); and
(iv) such assignment shall be evidenced by an Assignment and Acceptance, substantially in the form of Exhibit DH, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower Company and the Managing Administrative Agent) and delivered to the Managing Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment or Swing Line Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, Agreement such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (gf) of this Section 11.6Section, the consent of the Designated Borrower Company shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowersany Borrower, for any assignment which occurs at any time when any of the events described in Section 8(f7(f) shall have occurred and be continuing.
(d) Any NonThe Managing Administrative Agent, acting solely for this purpose as non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf fiduciary agent of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Managing Administrative Agent referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount (and stated interest) and Currency 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 Borrowerseach Borrower, the Managing 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 Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice or any other provisions hereof to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower Company and the Managing Administrative Agent) together with payment to the Managing Administrative Agent of a registration and processing fee of $2,000 3,500 and (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following if the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of not a Lender)) delivery to the Managing Administrative Agent of such Assignee’s Administrative Questionnaire, the Managing Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated applicable Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the Borrowers The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee any and all financial information in such Lender's ’s possession concerning the Parent, the Borrowers Company and their respective its Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Parent Company or the Borrowers any of its Subsidiaries pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent Company or the Borrowers any of its Subsidiaries in connection with such Lender's ’s credit evaluation of the Parent, the Borrowers Company and their respective its Subsidiaries and Affiliates prior to becoming a party to this Agreement.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank or any other central bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, which shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 is in respect of any issues requiring the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date approval of 100% of the final maturity of the Notes, consent Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation11.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.12 and 2.22 90 84 2.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.,
Appears in 1 contract
Sources: Revolving Credit and Guarantee Agreement (Fpa Medical Management Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, Holdings, the BorrowersBorrower, the Lenders, the Administrative AgentArranger, the Agents, all future holders of the Notes Term Loans and their respective successors and assigns, except that neither none of Parent, Holdings or the Parent nor the Borrowers Borrower may assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Arranger, the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Term Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Term Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower, the Arranger and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by Parent or any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Term Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsTerm Loans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Term Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section and provided, provided further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof or Affiliated Fund of the assigning Lender or of another Lender or, with the consent of the Designated Borrower and the Administrative Agent Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no such consent need be obtained by Lehm▇a Lehman Entity for a period of 180 days following the Closin▇ ▇▇▇mercial Paper Inc. for a period ▇ and (y) the consent of 120 days following the Closing DateBorrower need not be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE (an "Assignment and Acceptance"), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower or the Agents is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofthereof or Affiliated Fund) shall be in an aggregate principal amount of less than $2,000,000 (other than in 10,000,000, unless otherwise agreed by the case of an assignment of all of a Lender's interests under this Agreement Borrower, the Syndication Agent and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacility. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Term Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment principal amount of, and principal amount of interest accrued on, the Term Loans owing to, to each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Term Loans and any Term Notes evidencing such Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Term Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Term Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Term Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Term Note evidencing such Term Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Term Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Term Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender's Term Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or to an Original Lender) or (z) in the case of an Assignee which is already a Lender or is an affiliate of a LenderLender or an Affiliated Fund), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A applicable Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A applicable Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable Notes to such Assignee or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beapplicable Term Loans, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit CommitmentTerm Loans, Tranche A Loan and/or Tranche B Loanupon request, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may beNotes, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender Assignor or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Term Note or Term Notes shall be dated the Closing Date and shall otherwise be in the form of the Term Note or Term Notes replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and business, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees or other amounts payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationparticipating interest, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participating interest. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits and subject to the obligations of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a LenderLender or Assignee under Section 10.6(c); provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section; and provided, further, that (A) such Participant agrees to be subject to the provisions of Section 2.19 and 2.20 as if it were an Assignee under Section 10.6(c) and(B) no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans 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 Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate thereof Affiliate or Related Fund of a Lender or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which shall not be unreasonably withheld or delayed) (provided that no such consent from the applicable parties need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Dateany U.S. Bank Entity in its capacity as Assignor), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided further that with respect to assignments of Loans, no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement) and, after giving effect thereto, such Assignor shall have Loans aggregating at least $5,000,000 (if holding any), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts and minimum hold amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of No such assignment shall be made (i) to the Borrower or any tax, assessment or other charge or levy imposed by or on behalf of the United States Borrower’s Affiliates or Subsidiaries or (ii) to any Defaulting Lender or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans)its Subsidiaries, or Exhibit I-3 any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"ii). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if No such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) assignment shall deliver be made to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b)a natural Person.
(f) An Alternative Note In connection with any assignment of rights and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration obligations of any Defaulting Lender hereunder, no such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Percentage. Notwithstanding the foregoing, in the Register as provided in event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this Section 11.6(f)paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(g) The Administrative Agent shall shall, on behalf of the Borrower, maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment by the applicable Assignor or Assignee to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for or to a period of 120 days following the Closing Date U.S. Bank Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersThe Borrower, at their its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Loans assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date effective date of the relevant assignment and shall otherwise be in the form of the Note or Notes replaced thereby.
(i) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iij) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Agents and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (and any purported such assignment or transfer by a Borrower without such consent of each Lender shall be null and void), unless such assignment or transfer is from one Borrower to another Borrower.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (eachindividually a “Participant” and, collectively, the “Participants”) (so long as no Default or Event of Default has occurred and is continuing, only to a "Participant"Person other than an Ineligible Transferee) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsDocuments (a “Participation”). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan, Reimbursement Obligation or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment to or waiver of any provision of 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 the stated rate of interest on, the Notes Loans, Reimbursement Obligation or any fees payable to the Lender hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment Loans or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Reimbursement Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaidunpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable lawLaw, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a11.8(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of of, and bound by the obligations imposed on the Lenders in, Sections 2.204.10, 2.21 4.11, and 2.22 90 84 4.14 with respect to its participation in the Commitments and the Revolving Credit Loans and other Extensions of Credit outstanding from time to time-to-time as if it was were a Lender; provided that, in the case of Section 2.21, such a Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall not be entitled to receive any greater amount pursuant to any such Section payment in the case of Sections 4.10, 4.11, and 4.14 than the transferor applicable Lender would have been entitled to receive in with respect to the Participation sold to such Participant, unless the sale of the amount of Participation is made with the participation transferred by such transferor Lender to Borrowers’ prior written consent expressly acknowledging such Participant had no may receive a greater benefit; provided further that, a Participant that would be a Non-Exempt Lender if it were a Lender shall not be entitled to the benefits of Section 4.11 to the extent such transfer occurredParticipant fails to comply with Section 4.11(e) as though it were a Lender.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable lawLaw, at any time and from time to time-to-time assign to any Lender or any affiliate thereof Affiliate or Approved Fund thereof, or, with the consent of the Designated Borrower Administrative Agent, the Issuing Lenders and, so long as no Default or Event of Default has occurred and is continuing, the Administrative Agent Borrowers (which, in each case, which consent shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bankany other Person (the “Assignee”), financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender Lenders (and, in the case of an Assignee that is not then a Lender or an affiliate any Affiliate or Approved Fund thereof, by the Designated Borrower and the Administrative Agent, the Issuing Lenders, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no (i) each such assignment to an Assignee (other than any Lender or any affiliate thereofLender) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (a) an assignment of all of a Lender's ’s interests under this Agreement or (b) an assignment to an Affiliate or Approved Fund of the Assignor), unless otherwise agreed by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers (such amount to be aggregated in respect of assignments by to any Lender and the NotesAffiliates or Approved Funds thereof). Such , (ii) in the case of an assignment need by a Lender to a Bank CLO managed by such Lender or an Affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Administrative Agent, the Issuing Lenders and the Borrowers (such consent not to be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loansunreasonably withheld or delayed), Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderLender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that, the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section 11.1, and (iii) each Assignee shall comply with the provisions of Section 4.11(c), (iv) so long as no Default or Event of Default has occurred and is continuing, no such assignment shall be made to an Ineligible Transferee. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (ge) of this Section 11.611.7, the consent of the Designated Borrower Borrowers shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f9.1(f) shall have occurred and be continuing. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with clause (b) of this Section 11.7.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a record of each Participation and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholdersall Assignees, successors and Participants) and the Commitment Commitments of, and principal amount amounts of the Loans and other Obligations owing to, each Lender from time to time-to-time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other Obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time-to-time upon reasonable prior notice. If any Lender sells a Participation as described in Section 11.7(b), it shall provide to the Administrative Agent on behalf of the Borrowers, or maintain as agent of the Borrowers, the information described in this paragraph and permit the Administrative Agent and the Borrowers to review such information as reasonably needed for the Administrative Agent and the Borrowers, as applicable, to comply with their obligations under this Agreement or under any applicable Law or governmental regulation or procedure.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofLender, by the Designated Borrower and the Administrative Agent) , the Issuing Lenders and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) other than in the case of an Assignee which is already assignment to a Lender or is an affiliate Affiliate of a LenderLender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the The Borrowers authorizes authorize each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and, so long as no Default or Event of Default has occurred and is continuing, only to a Person other than an Ineligible Transferee and only with the consent of the Borrowers (which consent shall not be unreasonably withheld or delayed) any prospective Transferee in each case, any and all financial information in such Lender's ’s possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's ’s credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement; provided that such Transferee shall have agreed to be bound by the provisions of Section 11.15 hereof.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.7 concerning assignments of Loans and other Extensions of Credit and Notes relate only to absolute assignments and that such provisions do not prohibit or restrict any Lender from assignments creating security interests, including, without limitation, (i) pledging any pledge or assigning assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law or Law and (ii) any pledge or assignment by a Lender which is a fund to its trustee for the benefit of such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding the foregoing, any Lender may, with notice to, but without consent of, the Borrowers and the Administrative Agent, and in accordance with the prior definition of “Conduit Lender” set forth in Section 1.1 hereof and the terms of this Section 11.7(h), designate a Conduit Lender and fund any of the Loans or Unreimbursed Amounts which such Lender is obligated to make or pay hereunder by causing such Conduit Lender to fund such Loans or Unreimbursed Amounts on behalf of such Lender. Any Conduit Lender may assign any or all of the Loans or Unreimbursed Amounts it may have funded hereunder to its designating Lender without the consent of the Borrowers or the Administrative Agent and without regard to the Borrowers (whichlimitations set forth in Section 11.7(c). Each of the Borrowers, each Lender and each Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in each caseinstituting against a Conduit Lender any bankruptcy, shall not be unreasonably withheld reorganization, arrangement, insolvency or delayed), pledging its rights liquidation proceeding under any state bankruptcy or similar Law in connection with any obligation of such Conduit Lender under the Loan Documents, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or Note expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. In addition, notwithstanding the foregoing, any Conduit Lender may (i) with notice to, but without the prior written consent of, the Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans or Reimbursement Obligations to any other Personfinancial institutions (consented to by the Borrowers and the Administrative Agent) providing liquidity and/or credit support to or for the account of such Conduit Lender to support the funding or maintenance of Loans or Reimbursement Obligations by such Conduit Lender and (ii) disclose on a confidential basis any non-public information relating to its Loans and its Reimbursement Obligations to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such Conduit Lender. This clause (h) may not be amended without the written consent of any Conduit Lender directly affected thereby.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Except as otherwise provided in Section 10.18, this Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and with written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund thereof or, with the consent of the Designated Borrower and Borrower, the Administrative Agent and the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance (an "Assignment and Acceptance"), substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender Assignor, and the Administrative Agent (and, in where the case consent of an Assignee that the Borrower is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative AgentBorrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofor Approved Fund thereof or a Person under common management with such Lender, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: Credit Agreement (Panavision Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, the Canadian Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowersany Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Parent Borrower and the Administrative Agent (or the Canadian Agent, as applicable) shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 increase commitments, reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, postpone the date of the final maturity or scheduled amortization of the Notes, consent to the assignment Loans or transfer by release any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral Guarantor (other than in connection with any sale or other disposition of assets permitted by Section 7.6Asset Sales) or any guarantee all or substantially all of the ObligationsCollateral, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.202.16, 2.21 2.17 and 2.22 90 84 2.18 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.17, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Parent Borrower (except in the case of the assignment of a Term Loan, in which case only notice is required) and the Administrative Agent or the Canadian Agent, as well as the U.S. Issuing Lender or the Canadian Issuing Lender, in the case of the assignment of the Canadian Commitments (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent or the Canadian Agent, as appropriate, for its acceptance and recording in the its Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall shall, unless otherwise agreed by the Parent Borrower and the Administrative Agent or the Canadian Agent, as appropriate, be in an aggregate principal amount (treating multiple, simultaneous assignments to two or more Approved Funds managed by the same investment advisor as a single assignment) of less than (i) $2,000,000 (other than 1,000,000, in the case of an the Term Loans or (ii) $2,500,000, in the case of the U.S. Revolving Loans, unless the entire Commitments and Loans and other interests of the assigning Lender (and of all Lenders which are Approved Funds managed by the same investment advisor as the assigning Lender) are so assigned; provided, further, that, unless otherwise agreed to by the Parent Borrower and the Administrative Agent, no Canadian Lender and no U.S. Lender having a Related Canadian Lender may assign its Commitment in whole or in part unless the Assignee has a Related bank, financial institution or other entity which simultaneously assumes any obligations of the Related Lender of the transferor Lender with respect to the assigned Commitment; and provided, further, that no such assignment of all or any part of the Canadian Commitments or the Canadian Extensions of Credit shall be made in favor of any Person which is a Lender's interests under this Agreement and non-resident of Canada for the Notespurpose of Section 212 of the Income Tax Act (Canada). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loansthe Facilities other than, Tranche B Term Loan Commitments and/or Tranche B Term Loans unless otherwise agreed to by the Parent Borrower and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent, the Canadian Subfacility. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). The parties to each such assignment shall execute and deliver to the Administrative Agent or the Canadian Agent, as appropriate, an Assignment and Acceptance (such Assignment and Acceptance to be (A) electronically executed and delivered to the Administrative Agent or the Canadian Agent, as appropriate, via an electronic settlement system then acceptable to the Administrative Agent or the Canadian Agent, as appropriate, which shall initially be the settlement system of ClearPar, LLC, or (B) manually executed and delivered together with a processing and recordation fee of $3,500) and the assignee, if it shall not be a Lender immediately prior to the assignment, shall deliver to the Administrative Agent or the Canadian Agent, as appropriate, an Administrative Questionnaire and applicable tax form(s). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Parent Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax. The Canadian Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Canadian Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance delivered to it and a Register for the recordation of the names and addresses of the Canadian Lenders and the Commitment of, and the principal amount of the Loans owing to, each Canadian Lender from time to time.
(d) The Administrative Agent shall, on behalf of the Parent Borrower, maintain at its address referred to in Section 10.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersParent Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available for inspection by effective only upon appropriate entries with respect thereto being made in the Borrowers or any Lender at any reasonable time Register (and from time to time upon reasonable prior noticeeach Note shall expressly so provide).
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent or the Canadian Agent, in the case of the assignment of the Canadian Commitments, of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent or the Canadian Agent, as appropriate, shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Parent Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(bii) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsCredit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the principal ofstated rate, or forgive any portion, or postpone the date for the payment, of any interest onor fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the Notes aggregate amount of the Revolving Credit Commitment of any Lender or any fees payable hereunder, postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoan, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 13.8 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if it was were a Lender; , provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(ciii) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to (i) any Lender or any affiliate thereof or, Affiliate (with the consent of the Designated Borrower if any increased costs would result therefrom) thereof, or (ii) with the consent of the Administrative Agent (which shall not be unreasonably withheld), to any Eligible Assignee pursuant to an assignment that will not result in such Eligible Assignee holding more than 15% of the Total Revolving Credit Commitment, or (iii) with the consent of the Borrower and the Administrative Agent (which, which in each case, case shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date)withheld, to an additional bankit being understood that, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.without
Appears in 1 contract
Sources: Credit Agreement (Borden Chemicals & Plastics Limited Partnership /De/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests ----------- in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.18, 2.21 2.19 and 2.22 90 84 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.19, such Participant shall have -------- complied with the requirements of said Section and provided, further, that no -------- ------- Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable -------- law, at any time and from time to time assign to any Lender Lender, any affiliate or any affiliate Related Fund thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement --------- pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an -------- Assignee (other than any Lender Lender, any affiliate or any affiliate Related Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning LenderAssignor, new Notes shall not be required to be executed and delivered by the BorrowersBorrower, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its address referred to in Section 10.2 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 Commitments of, and the 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 Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement.
(e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the Register on the effective date determined pursuant thereto.
(i) Upon request of any Lender, the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇, G-4 or G-5, as the case may be, payable to the order of such Lender (or, in the case of any Alternative Note, payable to such Lender or its registered assigns). Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, ----- ----- provided that the failure to make any such recordation or any error in such -------- recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby.
(ii) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in ---------- respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers Borrower (through the Administrative Agent), and the Borrowers agree Borrower agrees thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in G-4 or G-5, as the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) may be (each, an "Alternative Note"). Alternative Notes may ---------------- not be exchanged for promissory notes that are not Alternative Notes.
(e) . Each Non-Non- U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if ---------------------- such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b2.19(b).
(f) . An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) Obligations evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f)Register.
(g) The Administrative Agent shall maintain at its address referred to Notwithstanding the limitations set forth in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register paragraph (the "Register"b) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment ofabove, 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance any Lender may at any time assign or pledge all or any portion of its rights under this Agreement or any Note to a Federal Reserve Bank and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, which is a "Transferee") and fund" may at any prospective Transferee time assign or pledge all or any and all financial information in portion of its rights under this Agreement to secure such Lender's possession concerning indebtedness, in each case without the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf prior written consent of the Parent any Borrower or the Borrowers pursuant to this Agreement or which has been delivered to Administrative Agent; provided that each such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein assignment shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank be made in accordance with -------- applicable law or (ii) with the prior consent and no such assignment shall release a Lender from any of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personobligations hereunder.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrowers, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent Holdings nor the Borrowers any Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersHoldings or either Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") ----------- participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes or any fees payable hereunder, postpone the date Party
15.1. Each of the final maturity of the Notes, consent to the assignment or transfer by any Holdings and each Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaidunpaid after applicable grace periods, or shall have been declared or shall have become due and payable upon the occurrence and during the continuation of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing -------- such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a5.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.207.11, 2.21 7.12 and 2.22 90 84 7.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a LenderLender if and to the extent the transferor Lender waives its rights to such amounts; provided that, -------- in the case of Section 2.217.13, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall -------- ------- be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw -------- and upon written notice to the General Administrative Agent (and the Canadian Administrative Agent, in the case of assignments with respect to the Canadian Facilities), at any time and from time to time assign to any Lender or any affiliate or Control Investment Affiliate thereof or, with the consent of the Designated relevant Borrower and the Administrative Agent Agents and, in the case of any assignment of U.S. Revolving Credit Commitments or Canadian Revolving Credit Commitments, the written consent of each relevant Issuing Lender and Swing Line Lender or the Canadian Swing Line Lender, as the case may be, (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such -------- consent need be obtained by Lehm▇▇ any ▇▇▇mercial Paper Inc. ▇▇▇ Entity for a period of 120 180 days following the Closing DateRestatement Effective Date and (y) no consent of Borrowers need be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and -------- obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the consent of a Borrower, the Administrative Agents or any Issuing Lender or the Swing Line Lender or the Canadian Swing Line Lender, as the case of an Assignee that may be, is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated such Borrower and the Administrative Agentsuch other Persons) and delivered to the General Administrative Agent for its acceptance and recording in the Register; provided that no such -------- assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 U.S.$5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the relevant Borrower and the Notes)General Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or 137 Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 7.11, 7.13 and 15.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Borrowers shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. Any assignment of Canadian Facilities after the Syndication Date must be to an Assignee that is entitled to receive payments in respect of the Canadian Facilities free and clear of any withholding or similar tax imposed by Canada or any province thereof.
(d) Any Non-U.S. Lender that could become completely exempt from withholding The General Administrative Agent (together with the Canadian Administrative Agent, in the case of any taxCanadian Facility Loans) shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)relevant Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 15.2 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 (including Alternative Noteholders) and -------- the Commitment Commitments 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 Borrowers, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the General Administrative Agent to the relevant Borrower marked "canceled". The Register shall be available for inspection by the Borrowers or any Lender (with respect to any entry relating to such Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 15.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the General Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to any ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Control Investment Affiliate of a Lender or a Person under common management with a Lender), the General Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders Lenders, the Agents and the Designated BorrowerBorrowers. On or prior to such effective date, the Borrowersrelevant Borrower, at their its own expense, upon request, shall execute and deliver to the General Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, or Notes of the assigning Lender) a new Revolving Credit Note, Tranche A Term applicable Note and/or Tranche B Term Note, as the case may be, applicable Notes to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has 138 retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanLoans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Noteor Notes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Original Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Revolving Credit Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Revolving Credit Loan owing to such Lender, any Note held by such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Credit Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral Section 13.1
(other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationa). The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Revolving Credit Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.this
Appears in 1 contract
Sources: Revolving Credit and Guarantee Agreement (Impath Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.14, 2.21 2.15 and 2.22 90 84 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.15, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which consent shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ any ▇▇▇mercial Paper Inc. ▇▇▇ Entity and no consent shall be required for a period the assignment by any Lender of 120 days following the Closing Dateany Loan), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower or Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000, and, after giving effect thereto, the Assignor shall hold Loans in an aggregate principal amount of not less than $1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), in each case, unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.14, 2.15 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent For purposes of the Designated Borrower minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingaggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an a duly completed Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to a ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld) to any financial institutions providing liquidity and/or credit support to or delayed)for the account of such SPC to support the funding or maintenance of Loans, pledging and (B) disclose on a confidential basis any non-public information relating to its rights in connection Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or Note withhold any consent applicable to such Loan, and the other parties to the Loan Documents shall be entitled to rely conclusively on the advice of such Granting Lender as to which of such Granting Lender or such SPC is entitled to grant or withhold such consent. This paragraph (g) may not be amended without the written consent of any other PersonSPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentTWTC, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or any Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. In the event that any Lender sells participations in a Loan, such Lender shall maintain a register on which it enters the name of all participants in the Loans held by it (the “Participant Register”). A Loan (and the Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender, any Affiliate of any Lender or any affiliate thereof Approved Fund or, with the consent of the Designated Borrower and Borrower, the Administrative Agent and the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofAffiliate of any Lender or any Approved Fund) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto)) except with respect to its obligations under Section 10.15. Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). In addition, a Lender shall permitted to transfer internally any of its Loans or any portion of its Revolving Commitments to an Approved Fund of such Lender without delivering an Assignment and Acceptance to the Administrative Agent, provided that (i) the transferring Lender shall maintain a register with respect to any such transfer and (ii) notwithstanding the effectiveness of any such transfer, the transferring Lender shall continue to be the Lender of record, and be obligated, hereunder for all purposes of this Agreement and the other Loan Documents until such Approved Fund that is a transferee of such Lender delivers an Assignment and Acceptance to the Administrative Agent for recording in accordance with this Section 10.6.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent, the Collateral Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative type described in paragraph (f) above.
(h) Each of TWTC, the Borrower, each Lender and each Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assignsassigns (and including, without limitation, in the case of each Debtor any trustee of such Debtor in the Chapter 11 Cases or in any subsequent proceeding under Chapter 7 of the Bankruptcy Code, without the execution of any additional agreement), except that neither the Parent nor Borrower and the Borrowers Guarantors may not assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents, provided that such Lender concurrently sells a participating interest in the Pre-Petition Loans in an equal percentage to the same Participant. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a12.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the DIP Commitments or Incremental DIP Commitment and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time time, subject to the consent of the Administrative Agent (which shall not be unreasonably withheld), assign to any Lender or any affiliate thereof or any Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following assignments involving the Closing DateAdministrative Agent or its Affiliates), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower Assignor and the Administrative Agent) Agent and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 3,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Administrative Agent; and provided, further, that no Lender shall assign any of its rights or obligations hereunder unless it concurrently assigns an equal percentage of its rights and obligations under the Pre-Petition Revolving Obligations and the Notes). Such assignment need not be ratable Pre-Petition Credit Agreement as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and it relates to the Pre-Petition Revolving Credit Commitments and/or Revolving Credit Loans of Obligations to the assigning Lendersame assignee. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment DIP Commitment, Incremental DIP Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) For purposes of this Section 11.612.6, the consent of the Designated Borrower "Approved Fund" shall not be requiredmean, andwith respect to any Lender that is a fund that invests in bank loans, unless requested any other fund that invests in bank loans which is managed or advised by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to same investment advisor as such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebyinvestment advisor.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the 86 81 amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Borrower, the Issuing Lender (in the case of assignments of Revolving Credit Commitments only) and the Administrative Agent Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent of the Borrower or any Agent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 180 days following the Closing DateDate and (y) the consent of the Borrower need not be obtained with respect to any assignment of funded Term Loans), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DG, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Agents or the Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 and result in the Assignor having aggregate Commitments of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), in each case unless otherwise agreed by the Borrower, the Syndication Agent and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an a duly executed Assignment and Acceptance executed by an assigning Lender and an Assignee (and, Acceptance; thereupon one or more new Notes in the case of an Assignee that is not then a Lender or an affiliate thereofsame aggregate principal amount shall be issued to the designated Assignee, by the Designated Borrower and the Administrative Agent) together with payment to old Notes shall be returned by the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.87 82
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentBorrower, the Borrowerseach Foreign Borrower, the Lenders, the Administrative AgentArrangers, the Agents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent Borrower nor the Borrowers any Foreign Borrower may assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and each Foreign Borrower or any other Person, in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of all Lenders pursuant to Section 10.1. Each of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers Foreign Borrower agree that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Each of the Borrower and each Foreign Borrower also agree that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section and Section 9.12, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate Affiliate or Related Fund thereof or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed; it being understood and agreed that (i) it shall not be unreasonable for the Administrative Agent to, in its sole discretion, withhold its consent in respect of any assignments or attempted assignments hereunder to the Borrower or any of its Affiliates and (provided that ii) no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), Administrative Agent or its Affiliates) to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of the Borrower, each Foreign Borrower the Administrative Agent, an Assignee that Issuing Lender, or a Swing Line Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofthereof or any Related Fund) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 with respect to Term Loans, $5,000,000 with respect to any Revolving Credit Facility (other than the German Revolving Credit Facility) and €5,000,000 with respect to the German Revolving Credit Facility (other than in each case, in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement)), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, neither the consent of the Designated Borrower nor any Foreign Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred exist and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (Borrower and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s)Foreign Borrower, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 or in the Administrative Schedules as applicable 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Foreign Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower or any Foreign Borrower, as applicable, marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower, each Foreign Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment and provided that no the Administrative Agent may waive such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderits sole discretion), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On The Borrower or prior to such effective dateany Foreign Borrower, the Borrowersas applicable, at their own expense, upon request, shall promptly execute and deliver to the Administrative Agent (in exchange for the applicable Term Notes and/or Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Revolving Credit Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the applicable Term Loans, Dollar Revolving Credit Commitment, Tranche A Loan Multicurrency Revolving Credit Commitment and/or Tranche B LoanGerman Revolving Credit Commitment, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Term Loans, Revolving Credit Commitment, Tranche A Loan Commitments and/or Tranche B LoanGerman Revolving Credit Commitments, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Revolving Credit Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Term Loans, Dollar Revolving Credit CommitmentCommitments, Tranche A Loan Multicurrency Revolving Credit Commitment and/or Tranche B LoanGerman Revolving Credit Commitments, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law and any pledge or assignment to any holders of obligations owed, or securities issued, by such Lender (iior any trustee for or any other representative of such holders).
(g) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower or any Foreign Borrower, as applicable, the option to provide to the Borrower or any Foreign Borrower, as applicable, all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower or any Foreign Borrower, as applicable, pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower or any Foreign Borrower, as applicable, and the applicable Agents and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or any Foreign Borrower may be disclosed only with the Borrower’s or any Foreign Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldco, the BorrowersBorrower, the Subsidiary Guarantors, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANT") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In , in no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided Agreement; PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided PROVIDED that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section; and providedPROVIDED, furtherFURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "ASSIGNOR") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which consent shall not be unreasonably withheld or delayed), the Issuing Lender (in the case of assignments of Revolving Commitments) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following and the Closing Date)Administrative Agent, to an additional bank, financial institution or other entity (an "AssigneeASSIGNEE") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided PROVIDED that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance delivered to it and a register (the "RegisterREGISTER") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available for inspection by effective only upon appropriate entries with respect thereto being made in the Borrowers or any Lender at any reasonable time Register (and from time to time upon reasonable prior noticeeach Note shall expressly so provide).
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Advances and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan Advance owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Advance for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower, the Arranger and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Advance Party therefrom, except to the extent that such amendment, waiver or consent would reduce require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent each “directly modified” Lender pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.01(a). The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Advances are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a8.06(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.08, 2.21 2.09, 2.11 and 2.22 90 84 10.07 with respect to its participation in the Commitments and the Loans Advances outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. In addition, each transferor Lender selling a participation to a Participant under this Section 10.06(b): (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such Participant, specifying such Participant’s entitlement to payments of principal and interest with respect to such participation, and (ii) shall collect from each such Participant the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such Participant were a Lender under Section 2.11.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Commitments, the written consent of the Issuing Bank (which, in each case, shall not be unreasonably withheld or delayed) (provided (y) that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period the Administrative Agent or its affiliates and (z) the consent of 120 days following neither the Closing DateAdministrative Agent nor the Borrower need be obtained with respect to any assignment of funded Term Advances), to an additional bank, financial institution or other entity (an "Assignee") Eligible Assignee all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit DC, executed by such Assignee, Eligible Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent or the Issuing Bank is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (A) no such assignment to an Eligible Assignee (other than than, in each case, any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of the Term Loan Facility) or $5,000,000 (in the case of the Revolving Credit Facility), unless (1) otherwise agreed by the Borrower and the Administrative Agent or (2) such assignment represents an assignment of all of a Lender's ’s interests under this Agreement and (B) if the NotesAssignor shall retain any Advances or Commitments after giving effect to such assignment such Advances and Commitments shall, unless otherwise agreed by the Borrower and the Administrative Agent, be in an aggregate principal amount of not less than $1,000,000 (in the case of the Term Loan Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Such Any such assignment need not be ratable as among any Tranche A the Revolving Credit Facility and Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacility. Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Advances as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.09, 2.11 and 10.04 and 10.07 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.02 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names name and addresses address of the Lenders (including Alternative Noteholders) each Lender and the Commitment ofeach Issuing Bank, each Lender’s Commitment, each Lender’s and each Issuing Bank’s interest in each Advance, each Letter of Credit and each Letter of Credit Obligation, and principal amount in the right to receive any payments hereunder and any assignment of the Loans owing to, each Lender from time to timeany such interest or rights. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent Agent, the Lenders and the Lenders Issuing Banks shall treat each Person whose name is recorded in the Register as the owner of the Loan Advances, any Notes evidencing such Advances and any Reimbursement Obligation recorded therein for all purposes of this Agreement. Any assignment of any Advance, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of an Advance evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Advance, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Eligible Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower, any Lender (with respect to any entry relating to such Lender’s Advances) or any Lender Issuing Bank (with respect to any entry relating to the Borrower’s Letter of Credit Obligations owed to such Issuing Bank) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Eligible Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.06(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) if required by Lehm▇▇ ▇▇▇mercial Paper Inc. for the Administrative Agent and, in any case treating multiple, simultaneous assignments by or to two or more Related Funds as a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lendersingle assignment), the Administrative Agent shall shall
(i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Eligible Assignee (or, in the case of any Alternative Note, payable to such Assignee or and its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Advances, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance Assumption and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Advances, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or Assignor and its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Advances, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Advances and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Advances and Notes, including any pledge or which has been delivered assignment by a Lender of any Loan or Note to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law, (ii) with any holder of, or trustee for the prior consent benefit of, the holders of such Lender’s securities or (iii) any SPC to which such Lender granted an option pursuant to clause (g) below.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of a Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.06(g), any SPC may
(A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld withheld) to any financial institutions providing liquidity and/or credit support to or delayedfor the account of such SPC to support the funding or maintenance of Advances, and (B) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Advances outstanding at the time of such proposed amendment. In addition, each Granting Lender granting an SPC the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), pledging of each SPC which has funded all or any part of any Advance that such Lender would have otherwise been obligated to make to the Borrower pursuant to this Agreement, specifying such SPC’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such SPC receives payments with respect to such funded Advance, from each SPC the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such SPC were a Lender under Section 2.11, and each SPC that assigns all or a portion of its interests in any Advance to any financial institution pursuant to this Section 10.06(g), (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such financial institution, specifying such financial institution’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such financial institution receives payments with respect to such funded Advance, from each such financial institution the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such financial institution were a Lender under Section 2.11.
(h) For purposes of this Section 10.06, if an Issuing Bank transfers its rights with respect to the Borrower’s Reimbursement Obligation with respect to a Letter of Credit, (i) such Issuing Bank shall give the Borrower and the Administrative Agent notice of such transfer for notation in connection with any Loan or Note to any other Person.the Register, (ii) each such transfer may only be made upon notation of such transfer in Register, and (iii) no such transfer will be effective for purposes of this Agreement unless it has b
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Interstate Hotels & Resorts Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Agents and their respective successors and assigns, except as otherwise provided in Section 8.4, that neither the Parent nor the Borrowers no Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (and any purported such assignment or transfer by such Borrower without such consent of each Lender shall be null and void).
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (eachindividually, a "“Participant"” and, collectively, the “Participants”) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsDocuments (a “Participation”). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan, Reimbursement Obligation or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, except with respect to Sections 4.10 and 4.11, under which the Participant has certain rights with respect thereto. In no event shall any Participant under any such participation Participation have any right to approve any amendment to or waiver of any provision of 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 the stated rate of interest on, the Notes Loans, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment Loans or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Reimbursement Obligations, in each case to the extent subject to such participationParticipation (and, for the avoidance of doubt, the Borrowers may exercise any rights granted to it in Section 4.17 with respect to the Lender that sold a Participation to such Participant to the extent that the direction by such Participant to such Lender to not consent to any such amendment would cause the applicable Lender to be subject to the provisions of Section 4.17). The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaidunpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable lawLaw, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, that in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a11.8(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of of, and bound by the obligations imposed on the Lenders in, Sections 2.204.10, 2.21 4.11 and 2.22 90 84 4.14 with respect to its participation Participation in the Commitments and the Loans and other extensions of credit hereunder outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable lawLaw, at any time and from time to time assign to any Lender or any affiliate thereof Subsidiary, Affiliate or Approved Fund thereof, or, with the consent of the Designated Borrower Collateral Agent, and, in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Administrative Borrowers’ Agent (which, in each case, which consent shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bankany other Person (the “Assignee”), financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate any Subsidiary, Affiliate or Approved Fund thereof, by the Designated Borrower Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing and the Administrative Borrowers’ Agent is not deemed to consent to such assignment, the Borrowers’ Agent) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no (i) each such assignment to an Assignee (other than any Lender or any affiliate thereofLender) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (A) an assignment of all of a Lender's ’s interests under this Agreement or (B) an assignment to another Lender, a Subsidiary, an Affiliate or an Approved Fund of such assigning Lender), unless otherwise agreed by the Collateral Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such amount to be aggregated in respect of assignments by to any Lender and the Notesaffiliates or Approved Funds thereof). Such , (ii) in the case of an assignment need by a Lender to a Bank CLO managed by such Lender or an affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such consent not to be ratable unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section 11.2, and (iii) each Assignee shall comply with the provisions of Section 4.11(e) and (iv) each partial assignment shall be made as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitments assigned, and each Lender assigning all or a portion of its rights and obligations must do so on a pro rata basis among the two separate Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (ge) of this Section 11.611.7, (x) the consent of the Designated Borrower Borrowers’ Agent shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers’ Agent, for any assignment which occurs at any time when any of the events described in Section 8(f9.1(f) shall have occurred and be continuingcontinuing and (y) the Borrowers’ Agent shall be deemed to have consented to any assignment that requires such consent pursuant to the terms thereof unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with Section 11.7(b).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its 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 (including Alternative Noteholdersall Assignees and successors) and the Commitment Commitments of, and principal amount amounts of the Loans and other Obligations owing to, each Lender from time to time. The entries made in the Register shall shall, to the extent permitted by applicable Law, be conclusive, in prima facie evidence of the absence existence and amounts of the obligations of the Borrowers therein recorded (absent manifest error), and the Borrowers, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other Obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other Obligation hereunder as the Loan recorded therein owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary; provided, however, that the failure of the Administrative Agent to maintain the Register, or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with applicable interest) the Loans and other extensions of credit hereunder made to the Borrowers by such Lender in accordance with the terms of this Agreement. Any assignment of any Loan or other Obligation hereunder, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrowers’ Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice. The parties intend for the Loans or other Obligations to be in registered form for tax purposes and this provision shall be construed in accordance with that intent.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender (or an affiliate any Subsidiary, Affiliate or Approved Fund thereof), by the Designated Borrower Administrative Agent, and in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Administrative Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent) ), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) other than in the case of an Assignee which is already assignment to a Lender or is an affiliate Affiliate of a LenderLender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby’ Agent.
(if) Each of the Parent and the The Borrowers authorizes authorize each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee in each case, any and all financial information in such Lender's ’s possession concerning the ParentBorrowers, the Borrowers other Loan Parties and their respective Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Parent Borrowers or the Borrowers other Loan Parties pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent Borrowers or the Borrowers other Loan Parties in connection with such Lender's ’s credit evaluation of the ParentBorrowers, the Borrowers other the Loan Parties and their respective Subsidiaries or Affiliates prior to becoming a party to this Agreement; provided that such Transferee or prospective Transferee shall have agreed to be bound by the provisions of Section 11.16 hereof.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.7 concerning assignments of Loans and other extensions of credit hereunder and Notes relate only to absolute assignments and that such provisions do not prohibit or restrict any Lender from assignments creating security interests, including, without limitation, (i) pledging any pledge or assigning assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law or Law and (ii) with any pledge or assignment by a Lender which is a fund to its trustee for the prior consent benefit of the Administrative Agent and the Borrowers (which, in each case, such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that no such pledge or assignment of a security interest shall not be unreasonably withheld release a Lender from any of its obligations hereunder or delayed), pledging its rights in connection with substitute any Loan such pledgee or Note to any other Personassignee for such Lender as a party hereto.
Appears in 1 contract
Sources: Credit Agreement (Cypress Environmental Partners, L.P.)
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and issuers of, and participants in, Letters of Credit and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent, the Syndication Agent and each Lender.
(b) Any Lender may, without notice to or the consent of the BorrowersBorrower or the Agents, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") ----------- participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan, Commitment or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers Loan Parties, the Administrative Agent and the Administrative Syndication Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationSection
10.1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, -------- such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.20, -------- such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater -------- ------- amount pursuant to any such Section than the transferor Lender that sold the participating interest to such Participant would have been entitled to receive in respect of the amount of the participation transferred sold by such transferor Lender to such Participant had no such transfer sale occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw -------- and upon written notice to the Administrative Agent and the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof affiliate, Related Fund or Control Investment Affiliate of any Lender or, with the consent of the Designated Borrower and Borrower, the Administrative Agent and the Syndication Agent and, in the case of any assignment of Revolving Credit Commitments, the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no -------- such consent of any Agent need be obtained by any ▇▇▇▇▇▇ Entity or by any Paribas Entity and (y) no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period with respect to any assignment of 120 days following the Closing DateTranche B Term Loans), to an additional bank, or financial institution or other entity (an "Assignee") all or any part of its rights and -------- obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent, the Syndication Agent or the Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the -------- Borrower and the Administrative Agent, (A) no such assignment to an Assignee (other than any Lender or Lender, any affiliate thereofthereof or Related Fund of any Lender) shall be in an aggregate principal amount of less than, and the aggregate principal amount retained by the assigning Lender shall not (unless such assigning Lender is thereby assigning all of its interest under this Agreement) be less than $2,000,000 2,500,000 (or, in the case of the Tranche B Term Loan Facility, $1,000,000) unless otherwise agreed to by the Borrower, the Administrative Agent and the Syndication Agent, in each case other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes)Agreement. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.19, 2.20 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrowers Borrower or any Agent, or by any Lender (with respect to any entry relating to such Lender's Loans), at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, (x) any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law and (y) any pledge or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, assignment by a Lender that is a fund that invests in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note bank loans to any other Person.holder of, trustee for, or
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") ----------- participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant -------- shall have complied with the requirements of said Section and provided, further, -------- ------- that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may, in the ordinary course of its business and in -------- accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any affiliate thereof Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations -------- under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any affiliate thereofApproved Fund) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation -------- recondition of the names and addresses of the Lenders (including Alternative Noteholders) and the Revolving Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)4,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees -------- to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Sources: Credit Agreement (Intira Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersGannett, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of Gannett or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Gannett agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.7(a) as fully as if it were a Lender hereunder. The Borrowers Gannett also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld withheld, delayed or delayedconditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (provided that no such ii) Gannett’s consent need shall not be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for considered to be unreasonably withheld, delayed or conditioned if Gannett withholds, delays or conditions its consent because, among other factors, it is concerned about a period of 120 days following the Closing Datepotential Assignee’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 10,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.69.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Gannett shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Gannett, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersGannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a promissory note, shall be available effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the promissory note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new promissory notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 9.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate Affiliate of a Lenderthe relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered assignment by a Lender to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior secure obligations to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law; provided that no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with Gannett, upon receipt of written notice from the prior consent relevant Lender, agrees to issue a promissory note to any Lender requiring such a note to facilitate transactions of the type described in paragraph (f) above.
(h) Each of Gannett, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentArrangers, the Agents, all future other holders of the Notes Obligations and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities Eligible Assignees (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, in any Commitment of such Lender or any other economic interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section Section; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Designated Borrower (which consent shall not be unreasonably withheld or delayed, it being understood that the Borrower may withhold its consent if any such assignment is to be made to a competitor of Borrower) and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no such consent need be obtained if (i) the Assignee is another Lender or an Affiliate of a Lender or (ii) the assignment is by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period Lender to a Related Fund of 120 days following any Lender, and (y) except with respect to any assignment to a competitor of the Closing DateBorrower, in any event the consent of the Borrower need not be obtained with respect to any assignment to an Eligible Assignee at any time when an Event of Default is continuing), to an additional bank, financial institution or other entity Eligible Assignee (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DI, executed by such Assignee, Assignee and such assigning Lender Assignor (an “Assignment and Acceptance”) (and, in where the case consent of an Assignee that is not then a the Borrower, the Administrative Agent or the Issuing Lender or an affiliate thereofthe Swing Line Lender is required pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or, with respect to such Lender, any Affiliate, Control Investment Affiliate or any affiliate thereofRelated Fund) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (in the case of the Term Loan) and $5,000,000 (in the case of the Revolving Credit Commitment or Revolving Credit Loans) and, after giving effect thereto, the Assignor shall retain an Aggregate Exposure of no less than $1,000,000 ($5,000,000 in the case of the Revolving Credit Commitment or Revolving Credit Loans) (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement such Agreement), in each case unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be party hereto as a party heretoLender). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Commitment and Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (x) in connection with an assignment by a Lender to, with respect to such Lender, an Affiliate, a Control Investment Affiliate or a Related Fund, (y) in connection with an assignment by Lehm▇▇ or to a L▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇ Entity or (z) in the case of an Assignee which that is already a Lender or is an affiliate Affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the any Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender Assignor or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: First Lien Credit Agreement (Spanish Broadcasting System Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, Collateral Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of Administrative Agent, Collateral Agent and each LenderLender (and any attempted assignment or transfer by Borrower without such consent shall be null and void).
(b) Any Lender may, without the consent of the Borrowersof, in the ordinary course of its business and or notice to, Borrower or any other Person, in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than a Disqualified Lender or a Defaulting Lender) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers ▇▇▇▇▇▇▇▇ and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Section 9.
1. Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a9.8(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.11, such Participant shall have complied with the requirements of said Section and 2.11, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments or the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(c) Any Subject to the conditions set forth in clause (ii) below, any Lender may, in the ordinary course and any Related Fund of its business and in accordance with applicable law, at any time and from time to time Lender (an “Assignor”) may assign to any Lender one or more banks, financial institutions, insurance companies or other entities (other than a Disqualified Lender, a natural person or any affiliate thereof or, with Management Affiliate to the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayedextent prohibited by Section 9.7(i)) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee"“Assignees”) all or any part a portion of its rights and obligations under this AgreementAgreement (including all or a portion of Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of Borrower and Administrative Agent (and Borrower shall be deemed to have consented to any such assignment of any Loans unless it shall have objected thereto by written notice to Administrative Agent within ten Business Days after having received notice thereof to a Responsible Officer of the Letters Borrower); provided:
(i) no consent of Credit Borrower shall be required, and Borrower may not object to any such assignment: (A) prior to the Notes first date on which at least 40% of the aggregate principal amount of the Loans outstanding on the Closing Date have been assigned to one or more Persons other than one or more of the Lenders as of the fifth Business Day following the Closing Date; (B) for any assignment of all or any portion of its rights and obligations under this Agreement (including Loans) to a Lender, an Affiliate of a Lender or an Related Fund, or (C) if an Event of Default has occurred and is continuing; and
(ii) no consent of Administrative Agent shall be required for an assignment of all or any portion of its rights and obligations under this Agreement (including all or a portion of Loans at the time owing to it) to a Lender, an Affiliate of a Lender or an Related Fund;
(d) Each Assignment shall be made pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit DI (an “Assignment and Assumption”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender, an Affiliate of a Lender or any affiliate thereofa Related Fund) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than than, in each case, in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by ▇▇▇▇▇▇▇▇ and Administrative Agent, (ii) the NotesAssignor or Assignee has paid to Administrative Agent a processing and recordation fee in the amount of $3,500.00 (which fee may be waived or reduced in the sole discretion of Administrative Agent). Such assignment need not , and (iii) only one such fee shall be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loanspayable in the case of concurrent assignments to Persons that, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lenderafter giving effect to such assignments, will be Related Funds. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment Commitments or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision For purposes of this paragraph (c) and paragraph (g) of the minimum assignment amounts set forth in this Section 11.69.7(c), multiple assignments by two or more Related Funds shall be aggregated. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Borrowers agree thereuponAdministrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Aggregate Exposure. Notwithstanding the foregoing, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form event that any assignment of Exhibit I-1 (in rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the case provisions of Obligations in respect this paragraph, then the assignee of Tranche A Term Loans), Exhibit I-2 (in the case such interest shall be deemed to be a Defaulting Lender for all purposes of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesthis Agreement until such compliance occurs.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall shall, on behalf of ▇▇▇▇▇▇▇▇, maintain at its address referred to in Section 11.2 9.2 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and principal amount (and stated interest) 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 Borrowers▇▇▇▇▇▇▇▇, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Note evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by Administrative Agent to Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such ▇▇▇▇▇▇’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(hf) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.7(c), by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no each such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderother Person), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit applicable Note, Tranche A Term Note and/or Tranche B Term Note, as the case may beif any, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable or Notes to such Assignee or its registered assigns) in an amount equal to the Revolving Credit CommitmentCommitment or Loan assumed or acquired by it pursuant to such Assignment and Assumption and, Tranche A Loan and/or Tranche B if the Assignor has retained a Commitment or Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, or Notes to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B LoanCommitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(ig) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) such SPV and the applicable Loan or any applicable part thereof, shall be appropriately reflected in the Participant Register. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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. In addition, notwithstanding anything to the contrary in this Section 9.7(h), any SPV may (x) with notice to, but without the prior written consent of, Borrower and Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and Administrative Agent and the Borrowers (which, in each case, which consent shall not be unreasonably withheld withheld, conditioned or delayed)) to any financial institutions providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans, pledging and (y) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV; provided that non-public information with respect to Borrower may be disclosed only with Borrower’s consent which will not be unreasonably withheld, conditioned or delayed. This Section 9.7(h) may not be amended without the written consent of any SPV with Loans outstanding at the time of such proposed amendment.
(i) Notwithstanding anything to the contrary contained herein (x) no assignment shall be permitted to any Management Affiliate which results in the Management Affiliates collectively holding more than 33% in aggregate principal amount of then outstanding Loans and (y) Loans held by any Management Affiliate shall not have the right to vote on any action to be taken hereunder or any Loan Document or to be taken into account in determining the “Required Lenders.”
(j) [Reserved].
(k) Any Lender may, so long as no Default or Event of Default has occurred and is continuing, at any time, may assign all or a portion of its rights and obligations with respect to Loans under this Agreement to Borrower or any of its Subsidiaries through Dutch auctions open to all Lenders on a pro rata basis in accordance with the procedures described below; provided that, in connection with any Loan assignments pursuant to this clause (k):
(i) (a) the principal amount of such Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or Note transferred to any other Person.Borrower or a Subsidiary shall be deemed automatically cancelled an
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment the Participation of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's L▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (w) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 (and subject to the limitations thereof) with respect to its participation in the Commitments Participations and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section 2.13 (including the requirements under Sections 2.13(e), 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.11, 2.12 or 2.13 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law made subsequent to the First Amendment and Restatement Effective Date that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Participations or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Participation or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates or an Ineligible Institution) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not then a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Participation and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment Participation of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan or Participation, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Participation evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan or Participation accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration fee not payable with respect to assignments to an Assignor’s Affiliate and processing such fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) The Borrower, upon receipt of written notice from the relevant L▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Parent and the Borrowers authorizes Borrower, each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, IntermediateCo, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Term Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its their rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Term Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds or (ii) a natural person. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Term Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Term Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 2.14 as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections 2.202.15, 2.21 2.16 or 2.17 (subject to the requirements and 2.22 90 84 limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each Participant’s interest in the Term Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of 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 to the extent 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.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawLaw and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to the Arranger) and, so long as no Event of Default under Section 7.1(a) or (f) has occurred and is continuing, the Borrower (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made to or, in connection with the primary syndication of the Term Loan Facility, by, the Arranger) (provided that the Borrower shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate thereof oraffiliate, with the consent of the Designated Borrower and the Administrative Agent (whichRelated Fund or Control Investment Affiliate thereof, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents; provided, further, that no such assignment to an Assignee (other than any Lender or any affiliate thereof) of Term Loans shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Term Loans) shall have Term Loans aggregating at least $1,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement and the Notes). Such assignment need not be ratable as among to (i) any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderPermitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) Holdings, the Borrower or any of their respective Subsidiaries or (iii) any natural person. Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Term Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided of the interest assigned in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. Notwithstanding anything to the contrary herein, any provision of this paragraph (c) and paragraph (g) of assignment by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to this Section 11.69.6 that would cause the aggregate principal amount of Term Loans held by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and its controlled Affiliates to be less than a majority of the aggregate principal amount of Term Loans held by all Lenders shall be subject, so long as no Event of Default under Section 7.1(a) or (f) has occurred and is continuing, to the consent of the Designated Borrower (which shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingunreasonably withheld or delayed).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.[Reserved];
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 9.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such registration and processing fee shall be payable required to be paid (yA) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following or to the Closing Date Arranger or any Affiliate thereof or (zB) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderany affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (i1) promptly accept such Assignment and Acceptance and (ii2) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A applicable Term Note and/or Tranche B Term Note, as the case may be, Loan Notes of the assigning Lender) a new Revolving Credit Note, Tranche A Term Loan Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Term Loans assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit CommitmentTerm Loans, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Loan Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Term Loans retained by it hereunder. Such new Term Loan Note or Term Loan Notes shall be dated the Closing Date and shall otherwise be in the form of the Term Loan Note or Term Loan Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Term Loans and Term Loan Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Term Loans and Term Loan Notes, including any pledge or which has been delivered to such assignment by a Lender by of any Term Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Term Loan Note to any Federal Reserve Bank in accordance with applicable law or Law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Term Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Term Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Term Loan, the Granting Lender shall be obligated to make such Term Loan pursuant to the terms hereof. The making of a Term Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Term Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. Each party hereto also agrees that each caseSPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Term Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except to the extent that entitlement to a greater amount results from a change in Law that occurs after such interest was granted, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, pledging notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its rights sole discretion), assign all or a portion of its interests in connection any Term Loans to the Granting Lender, or with any Loan or Note the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Term Loans, and (B) disclose on a confidential basis any non-public information relating to its Term Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or its Affiliates may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This Section 9.6(g) may not be amended without the written consent of any SPC with Term Loans outstanding at the time of such proposed amendment. To the extent an SPC provides a Term Loan, the applicable Lender may maintain a register on behalf of the Borrower and the SPC’s interest must be entered in the register.
Appears in 1 contract
Sources: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating ----------- interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such -------- participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21-------- 2.20, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to -------- ------- receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Borrower, the Issuing Lender, the Swing Line Lender and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and -------- obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, such assigning Lender Assignor and the Administrative Agent (and, in where the case consent of an Assignee that the Borrower is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative AgentBorrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the -------- Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall (i) be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement) or (ii) result in the sum of (A) the unpaid principal amount of such Assignor's Term Loans and (B) such Assignor's Revolving Credit Commitment or, if the Notes)Revolving Credit Commitments have been terminated, such Assignor's Revolving Extensions of Credit being less than $5,000,000. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofthereof or a Person under common management with such Lender, by the Designated Borrower Borrower, the Administrative Agent and the Administrative AgentIssuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 by the Assignee (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, the Arrangers, all future holders of the Notes Bridge Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its their rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Bridge Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or (iii) a Disqualified Institution (it being understood that the list of Disqualified Institutions shall be available to all Lenders). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Bridge Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Bridge Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 2.14 as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections 2.202.15, 2.21 2.16 or 2.17 (subject to the requirements and 2.22 90 84 limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Bridge Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation (and each Granting Lender whose SPC provides a Bridge Loan) shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant (and each such SPC) and the principal and interest amounts of each Participant’s (and each such SPC’s) interest in the Bridge Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the identity of any Participant (or any SPC) or any information relating to a Participant’s (or a SPC’s) interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent 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.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawLaw and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) and, prior to the Bridge Loan Maturity Date, so long as no Event of Default under Section 7.1(a)(1), (7) or (8) has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld, conditioned or delayed), at any time and from time to time assign to any Lender or any affiliate thereof oraffiliate, with the consent of the Designated Borrower and the Administrative Agent (whichRelated Fund or Control Investment Affiliate thereof, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, Acceptance executed by such Assignee, Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (1) if any assignment is being made to any Lender, an affiliate of a Lender or a Related Fund, (2) if a Demand Failure Event has occurred and is continuing or (3) to the extent that the Arrangers, in their capacity as lenders, would, after giving effect to such assignments, hold at least 51% in aggregate principal amount of the outstanding Bridge Loans, such assignments will not be subject to the above described consents; provided, further, that no such assignment to an Assignee (other than any Lender or any affiliate thereof) of Bridge Loans shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (other than in the case of an assignment of all of a Lender's ’s interests in the Bridge Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Bridge Loans) shall have Bridge Loans in an aggregate principal amount of at least $1,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement and the Notes). Such assignment need not be ratable as among to (i) any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderPermitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) the Borrower or any of its Subsidiaries, (iii) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or (iv) any Disqualified Institution (it being understood that the list of Disqualified Institutions shall be available to all Lenders). Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Bridge Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided of the interest assigned in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent For purposes of the Designated Borrower minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. The Administrative Agent shall not be required, and, unless requested by responsible for monitoring the Assignee and/or the assigning Lender, new Notes shall not be required to be executed Disqualified Institutions list and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuingno liability for non-compliance by any Lender.
(d) Any Non-U.S. Notwithstanding anything herein to the contrary, any Lender that could become completely exempt from withholding of may, at any taxtime, assessment or other charge or levy imposed by or on behalf of the United States assign all or any taxing authority thereof ("U.S. Taxes") portion of its rights and obligations under this Agreement in respect of payment its Bridge Loans to any Affiliated Lender on a non-pro rata basis through open market purchases at prices at or above the full par value of any Obligations due to such Non-U.S. Lender under this Agreement if Bridge Loans without the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through consent of the Administrative Agent), and ; provided that:
(i) any Bridge Loans acquired by the Borrowers agree thereuponBorrower or any of its Subsidiaries shall, to exchange the extent permitted by applicable Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below retirement and substantially in cancellation, the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and principal amount of the Bridge Loans owing to, each Lender from time to time. The entries in the Register shall be conclusivedeemed reduced by the full par value of the aggregate principal amount of the Bridge Loans so retired and cancelled;
(ii) any Bridge Loans acquired by any Non-Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its Subsidiaries (it being understood that any Bridge Loans so contributed shall, in to the absence of manifest errorextent permitted by applicable Law, be retired and the Borrowerscancelled promptly upon such contribution); provided that upon any such cancellation, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner aggregate outstanding principal amount of the Loan recorded therein for all purposes of this Agreement. The Register Bridge Loans shall be available for inspection by deemed reduced, as of the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt date of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereofsuch contribution, by the Designated Borrower full par value of the aggregate principal amount of the Bridge Loans so contributed and cancelled;
(iii) the relevant Affiliated Lender and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee Assignor shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of have executed an Assignee which is already a Affiliated Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and shall have identified itself as an Affiliated Lender on such Affiliated Lender Assignment and Acceptance;
(iiiv) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation after giving effect to the Lenders relevant assignment and the Designated Borrower. On or prior to such effective dateall other assignments to all Affiliated Lenders, the Borrowersaggregate principal amount of all Bridge Loans then held by all Affiliated Lenders shall not exceed 30% of the aggregate principal amount of the Bridge Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof) (the “Affiliated Lender Cap”); provided, at their own expense, shall execute that each party hereto acknowledges and deliver to agrees that the Administrative Agent have no duty to monitor, and shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with, any compliance or non-compliance with this clause (d)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender Cap is intended to apply to any Bridge Loan made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result in exchange for the Revolving Credit Noteaggregate principal amount of Bridge Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially simultaneous cancellation thereof), Tranche A Term Note and/or Tranche B Term Notethe assignment of the relevant excess amount shall be null and void;
(v) no Default or Event of Default exists at the time of the entry into a binding agreement with respect to the relevant open market purchase;
(vi) by its acquisition of Bridge Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) the Bridge Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required Lender or other Lender vote; provided that (x) such Affiliated Lender shall have the right to vote (and the Bridge Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity as a Lender as compared to other Lenders that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its share of any payments which the assigning Lender) Lenders are entitled to share on a new Revolving Credit Notepro rata basis hereunder, Tranche A Term Note and/or Tranche B Term Note, as in each case without the case may be, to the order consent of such Assignee Affiliated Lender; and
(orB) such Affiliated Lender, solely in the case of any Alternative Noteits capacity as an Affiliated Lender, payable will not be entitled to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to attend (including by telephone) or participate in any Participant meeting or Assignee discussion (each, a "Transferee"or portion thereof) and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of solely among the Administrative Agent and the Borrowers (whichany Lender or solely among Lenders and, in each case, to which the Loan Parties and their representatives are not invited, or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than the right to receive a Funding Notice and notices of prepayments and other administrative notices in respect of its Bridge Loans required to be delivered to Lenders pursuant to Section 2);
(vii) no Affiliated Lender shall be required to represent or warrant that, as of the date of any such purchase or assignment, it is not be unreasonably withheld or delayed), pledging its rights in possession of material non-public information with respect to the Borrower and/or any Subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 9.6(d); and
(viii) in any proceeding under any Debtor Relief Law, the interest of any Affiliated Lender in any Bridge Loan will be deemed to be voted in the same proportion as the vote of Lenders that are not Affiliated Lenders on the relevant matter and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or Note reject any plan pursuant to the Bankruptcy Code of the United States is not deemed to have been so voted, then such vote will be (i) deemed not to be in good faith and (ii) “designated” pursuant to Section 1126(e) of the Bankruptcy Code of the United States such that the vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code of the United States; provided that each Affiliated Lender will be entitled to vote its interest in any Bridge Loan for any plan of reorganization or other arrangement with respect to which the relevant vote being sought proposes to treat the interest of such Affiliated Lender in such Bridge Loan in a manner that is less favorable to such Affiliated Lender than the proposed treatment of Bridge Loans held by other Lenders. Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Bridge Loans to any other Person.Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Bridge Loans and/or Commitments on a non-pro rata basis through open market purchases without the consent of the Administrative Agent, in each case, notwithstanding the requirements set forth in subclauses (i) through (viii) of this clause (d); provided t
Appears in 1 contract
Sources: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender (except in a transaction permitted by Section 7.4).
(b) Any Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by Commitment of such Lender, any Commitment the Tranche B-1 Credit Linked Deposit Amount of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.18, 2.21 2.19 and 2.22 90 84 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.19, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation, acting solely for this purpose as an agent of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 in the case of Revolving Commitments, $1,000,000 in the case of Tranche B Term Loans or $1,000,000 in the case of Tranche B-1 Credit Linked Deposit Amounts (provided that assignments made by any Lender on the same day to an Assignee and its affiliates (including any Lender Affiliates) and contemporaneous assignments by Lender Affiliates to a single Assignee may be treated as a single assignment for purposes of satisfying any such minimum assignment amount requirement (other than in the case of an assignment of all of a Lender's ’s interests under the applicable Facility), (ii) after giving effect to any such assignment, such Lender and its affiliates (including any Lender Affiliates) shall retain Commitments, Term Loans and Tranche B-1 Credit Linked Deposit Amounts in an aggregate principal amount of $5,000,000 in the case of Revolving Commitments, $1,000,000 in the case of Tranche B Term Loans or $1,000,000 in the case of Tranche B-1 Credit Linked Deposit Amounts (other than in the case of an assignment of all of a Lender’s interests under the applicable Facility), in each case unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) no Lender may assign any interest in the Revolving Facility (other than, with the consent of the Administrative Agent, not to be unreasonably withheld or delayed, to an affiliate of such Lender or, to another Lender then holding Revolving Commitments) without the consent of the Administrative Agent, the Borrower, the Issuing Lender and the Swingline Lender (not to be unreasonably withheld or delayed). For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Lender Affiliates, if any (other than in the case of an assignment of all of a Lender’s interests under this Agreement and the NotesAgreement). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be deemed a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section Default pursuant to Sections 8(a) or 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower. Without the consent of the Borrower and the Administrative Agent, the Tranche B-1 Credit Linked Deposit of any Tranche B-1 Lender shall not be released in connection with any assignment by such Tranche B-1 Lender, but shall instead be purchased by the relevant assignee and continue to be held for application (to the extent not already applied) in accordance with Section 2.4 to satisfy such assignee’s obligations in respect of Tranche B-1 Exposure. Each Tranche B-1 Lender agrees that immediately prior to such assignment (x) the Administrative Agent shall establish a new Tranche B-1 Credit Linked Account in the name of such assignee, (y) unless otherwise consented to by the Administrative Agent, a corresponding portion of the amount on deposit in the Tranche B-1 Credit Linked Account of the assignor Tranche B-1 Lender shall be purchased by the assignee and shall be transferred from the assignor’s Tranche B-1 Credit Linked Account to the assignee’s Tranche B-1 Credit Linked Account and (z) if after giving effect to such assignment the aggregate amount of the Tranche B-1 Credit Linked Deposit Account of the assignor Tranche B-1 Lender shall be $0, the Administrative Agent shall close the Tranche B-1 Credit Linked Account of such assignor Tranche B-1 Lender.
(d) Any Non-U.S. Notwithstanding anything to the contrary contained herein, any Lender that could become completely exempt which is a bank (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from withholding time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any taxLoan which such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided, assessment that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation hereunder (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto agrees (which agreement shall survive termination of this Agreement) that in the event of any such grant by a Granting Bank to an SPC of the option to provide to the Borrower all or any part of its Loan, (i) such Granting Bank’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged and such Granting Bank shall remain solely responsible for the performance of such obligations under this Agreement and the other Loan Documents, (ii) such Granting Bank shall remain the holder of such Loan for all purposes under this Agreement and the other Loan Documents and nothing contained in this Section 10.6(d) is intended to excuse the Granting Bank from the full performance of its obligations hereunder and thereunder or otherwise diminish the duties and liabilities of the Granting Bank under this Agreement or the other Loan Documents (other than it being understood that any payment obligation on the part of such Granting Bank to make a Loan hereunder shall, if such Loan is made by any SPC, be deemed to have been satisfied upon the making of such Loan by such SPC), (iii) the Borrower and the Administrative Agent shall continue to deal solely and directly with such Granting Bank in connection with such Granting Bank’s rights and obligations under this Agreement and the other Loan Documents, (iv) in no event shall any SPC have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, or be included in any determination of the Required Lenders or the Majority Facility Lenders hereunder for any purpose, (v) prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other charge senior Indebtedness of any SPC, it will not institute against, or levy imposed by join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or on behalf liquidation proceedings under the laws of the United States or any taxing authority thereof State thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.6(d), any SPC may ("U.S. Taxes"X) with notice to, but without prior written consent of, the Borrower and the Administrative Agent (subject, however, to the approval of the financial institution as set forth below), assign all or a portion of its interests in respect of payment of any Obligations due Loan to such Non-U.S. Lender under this Agreement if the Obligations were Granting Bank or to a financial institution (previously approved in registered form for U.S. federal income tax purposes may request writing by the Borrowers (through Borrower and the Administrative Agent)) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of the Loans and (Y) subject to Section 10.15 hereof, and the Borrowers agree thereupon, disclose on a confidential basis any non-public information relating to exchange its Loans to any promissory 91 85 note(s) evidencing such Obligations rating agency as specifically provided for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note")Section 10.15 hereof. Alternative Notes This Section 10.6 may not be exchanged for promissory notes that are not Alternative Notesamended without the prior written consent of the SPC, the Borrower and the Administrative Agent.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall shall, on behalf of the Borrower, maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount of the Loans owing toto and the amount of the Tranche B-1 Credit Linked Deposit Amount of, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein and the Tranche B-1 Credit Linked Deposits Accounts for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note or Tranche B-1 Credit Linked Deposit Amount, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the designated Assignee. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(hf) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration which shall not be an obligation of the Borrower and processing fee which shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. paid once in connection with simultaneous assignments for a period of 120 days following the Closing Date or Lender and its affiliates (zincluding any Lender Affiliates) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderif any), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective datedate determined pursuant thereto.
(g) The Assignee, the Borrowers, at their own expenseif it shall not be a Lender, shall execute and deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in exchange for accordance with the Revolving Credit Noteassignee’s compliance procedures and applicable laws, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment including Federal and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebystate securities laws.
(ih) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes and Tranche B-1 Credit Linked Deposit Amounts relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Sources: Credit Agreement (Tenneco Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes parties hereto and their respective successors and assigns, except that (i) neither the Parent Company nor the Borrowers any Subsidiary Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void), except that pursuant to Section 2.23(c) any Subsidiary Borrower may assign its rights and obligations hereunder to the Company pursuant to an assignment and assumption agreement in form and substance reasonably satisfactory to the Managing Administrative Agent, and (ii) no Lender may assign or transfer any of its rights or obligations under this Agreement to a Defaulting Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant"other than Ineligible Persons) (“Participants”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment or Swing Line Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Managing Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event No Lender shall be entitled to create in favor of any Participant under any Participant, in the participation agreement pursuant to which such participation have Participants participating interest shall be created or otherwise, any right to approve any amendment or waiver of any provision of 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 vote on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by approve any Borrower of any of its rights and obligations under matter relating to this Agreement and the or any other Loan DocumentsDocument except for those specified in clauses (i), release all or a substantial portion (ii), (iii) and (v) of the Collateral (other than in connection with any sale or other disposition of assets permitted by proviso to Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation9.1. The Borrowers agree Company and each Subsidiary Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff set-off in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(asubsection 9.7(a) as fully as if it were a Lender hereunder. The Borrowers Company also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13, 2.15 and 2.22 90 84 2.16 with respect to its participation in the Commitments, Swing Line Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the applicable Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender one or any affiliate thereof ormore banks or other financial institutions, with including a finance company or fund (whether a corporation, partnership or other entity) which is engaged in making, purchasing or otherwise investing in commercial loans in the consent ordinary course of the Designated Borrower its business, and the Administrative Agent having total assets in excess of $500,000,000 (which, in each case, shall not be unreasonably withheld or delayedother than Ineligible Persons) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date)bank or financial institution, to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this AgreementAgreement and the other Loan Documents; provided, however, that
(i) except in the case of an assignment to a Lender or, subject to giving prior written notice thereof to the Company and the Managing Administrative Agent, an Affiliate of a Lender which is a bank or financial institution, each of the Managing Administrative Agent, each Swing Line Lender and (except when a Default or Event of Default shall have occurred and be continuing) the Company must give its consent to such assignment (which in each case shall not be unreasonably withheld or delayed); provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Managing Administrative Agent within ten Business Days after written notice of such assignment shall have delivered to the Company to the attention of its Treasurer and Assistant Treasurer;
(ii) the rights and obligations of each Swing Line Lender relating to its Swing Line Loans and Swing Line Commitment may be assigned or retained, at its option, independently of any of its other rights and obligations under the Loan Documents in connection with any assignment otherwise permitted hereunder;
(iii) in the case of any assignment to any Assignee that is not a Lender or an Affiliate thereof, the Letters sum of Credit the aggregate principal amount of the Loans and the Notes pursuant aggregate amount of the Commitments and Swing Line Commitments being assigned and, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans and the aggregate amount of the Commitments and Swing Line Commitments remaining with the assigning Lender are each not less than $5,000,000 (or such lesser amount as may be agreed to by the Company and the Managing Administrative Agent); and
(iv) such assignment shall be evidenced by an Assignment and Acceptance, substantially in the form of Exhibit DH, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower Company and the Managing Administrative Agent) and delivered to the Managing Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment or Swing Line Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 ’s rights and obligations under this Agreement, Agreement such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (gf) of this Section 11.6Section, the consent of the Designated Borrower Company shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowersany Borrower, for any assignment which occurs at any time when any of the events described in Section 8(f7(f) shall have occurred and be continuing.
(d) Any NonThe Managing Administrative Agent, acting solely for this purpose as non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf fiduciary agent of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrowers, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its the address of the Managing Administrative Agent referred to in Section 11.2 9.2 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 (including Alternative Noteholders) and the Commitment of, and principal amount (and stated interest) and Currency 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 Borrowerseach Borrower, the Managing 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 Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice or any other provisions hereof to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Company or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower Company and the Managing Administrative Agent) together with payment to the Managing Administrative Agent of a registration and processing fee of $2,000 3,500 and (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following if the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of not a Lender)) delivery to the Managing Administrative Agent of such Assignee’s Administrative Questionnaire, the Managing Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated applicable Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(if) Each of the Parent and the Borrowers The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "“Transferee"”) and any prospective Transferee any and all financial information in such Lender's ’s possession concerning the Parent, the Borrowers Company and their respective its Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Parent Company or the Borrowers any of its Subsidiaries pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent Company or the Borrowers any of its Subsidiaries in connection with such Lender's ’s credit evaluation of the Parent, the Borrowers Company and their respective its Subsidiaries and Affiliates prior to becoming a party to this Agreement.
(jg) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank or any other central bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Sources: Credit Agreement (Mastercard Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors (which shall include, in the case of any Lender, any entity resulting from a merger or consolidation) and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower or the Administrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") ), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such Lender, any Note held by such Lender, any Tranche A Incremental Term Commitment or Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 (i) reduce the principal ofamount or extend the scheduled date of amortization or maturity of any Loan, or (ii) reduce the rate of interest on, the Notes or any fees payable hereunder, postpone fee or extend any due date thereof or (iii) increase the amount or extend the expiry date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLender's commitment, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.16, 2.21 2.17 and 2.22 90 84 2.18 with respect to its participation in the Tranche A Incremental Term Commitments and the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.17, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.. 83 78
(c) Any Lender other than any Conduit Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any affiliate thereof Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than that, except in the case of an assignment of all of a Lender's interests under this Agreement Agreement, no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund, each an "Intracreditor Assignee") shall (i) be in an aggregate principal amount of less than (x) $5,000,000, in the case of the Revolving Facility and the NotesTranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility or (ii) cause the Assignor to have Aggregate Exposure of less than (x) $3,000,000, in the case of the Revolving Facility and the Tranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility, in the case of either clause (i) or (ii), unless otherwise agreed by the Borrower and the Administrative Agent; provided further that, except in the case of an assignment of all of a Lender's interests under this Agreement, no such assignment to an Intracreditor Assignee shall (i) be in an aggregate principal amount of less than $250,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $250,000, in each case unless otherwise agreed by the Borrower and the Administrative Agent. Such For purposes of clauses (i) and (ii) of the preceding sentence, the amounts described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Tranche A Incremental Term Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the terms thereof to the Syndication Agent. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Tranche A Incremental Term Commitment and the Revolving Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent 84 79 Agents and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time designated Assignee. The Administrative Agent will promptly send a copy of the Register to time the Borrower upon reasonable prior noticerequest.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note Loan to any Federal Reserve Bank in accordance with applicable law or including, in the case of any Lender that is an investment fund, any pledge or assignment of all or any portion of such Lender's rights under this Agreement to any holders of obligations owed, or securities issued, by such Lender as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(iig) with Each of Holdings, the prior consent of Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Sources: Credit Agreement (Charter Communications Holdings Capital Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. In furtherance and not in limitation of the foregoing, no party to the Pre-Petition Credit Agreement or the DIP Credit Agreement shall have any rights, duties or obligations under this Agreement or the other Loan Documents, nor shall any such party be entitled to any of the benefits of this Agreement or the other Loan Documents, unless such party is also a party to this Agreement.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time time, subject to the consent of the Administrative Agent (which shall not be unreasonably withheld), assign to any Lender or any affiliate thereof or any Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for assignments involving the Administrative Agent or its Affiliates and no consent of the Borrower shall be required at any time that a period Default or Event of 120 days following the Closing DateDefault has occurred and is continuing), to an additional any bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, such assigning Lender Assignor and the Administrative Agent (and, in where the case consent of an Assignee that the Borrower is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative AgentBorrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofthereof or an Approved Fund) shall be in an aggregate principal amount of less than $2,000,000 3,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all For purposes of this Agreement. The Register Section 10.6, "Approved Fund" shall be available for inspection mean, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans which is managed or advised by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a same investment advisor as such Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebyinvestment advisor.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Sources: Restructuring Credit Agreement (Imperial Sugar Co /New/)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent Borrower nor the Borrowers Restricted Subsidiaries may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantParticipants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no 72 79 event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a12.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.204.9, 2.21 4.10 and 2.22 90 84 4.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.214.10, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity Person (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DA, executed by such Assignee, Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister (with a copy to the Borrower); provided that that, (i) no such assignment to an Assignee (other than to any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 and $1,000,000 multiples thereof, (ii) after giving effect to any such assignment, the assigning Lender (together with any Lender which is an affiliate of such assigning Lender) shall retain no less than 49% of its original Commitment, unless otherwise agreed to by the Borrower and (iii) each assignment (other than in to any Lender or any affiliate thereof) shall be subject to the case prior written consent of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need Borrower (which consent shall not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lenderunreasonably withheld). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
73 80 (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers Borrower (through the Administrative Agent), and the Borrowers agree Borrower agrees thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 N (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each a Form W-8 (Certificate of Foreign Status of the forms U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and certifications required is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by Section 2.21(bthe U.S. taxing authorities for such purposes).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f12.6(f).
(g) The Administrative Agent Agent, on behalf of the Borrower, shall maintain at its the address of the Administrative Agent referred to in Section 11.2 12.2 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 (including Alternative Noteholders) and the Commitment Commitments of, and principal amount 74 81 amounts 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 BorrowersBorrower, the Administrative Agent and the Lenders shall may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of Subject to Section 12.15, the Parent and the Borrowers Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the Transferee agreeing to be bound by the provisions of Section 12.15, any and all financial information in such Lender's possession concerning the Parent, Borrower and the Borrowers and their respective Affiliates Restricted Subsidiaries which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers Borrower and their respective Affiliates its Restricted Subsidiaries prior to becoming a party to this Agreement.
(j) Nothing herein shall For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or restrict assignment by a Lender of any Lender from (i) pledging Loan or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.law. 12.7
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the ParentBorrower, the Borrowers, the Lenders, the Administrative Agent, all future holders of the Notes Lender and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each the Lender.
(bii) Any The Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANTS") participating interests in any Loan owing to such Lender, any Note held by such Lender, any its Commitment of such Lender or its Loans or any other interest of such the Lender hereunder and under the other Loan DocumentsCredit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a the Lender of a participating interest to a Participant, such the Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such the Lender shall remain solely responsible for the performance thereof, such the Lender shall remain the holder of any such Note the Loans for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers and the Administrative Agent Borrower shall continue to deal solely and directly with such the Lender in connection with such the Lender's rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of the Loans or reduce the principal ofstated rate, or forgive any portion, or postpone the date for the payment, of any interest onor fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the Notes aggregate amount of the Commitment or any fees payable hereunder, postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a the Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurredAgreement.
(ciii) Any The Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Affiliate (with the consent of the Borrower if any increased costs would result therefrom) of the Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, which shall not be unreasonably withheld withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datemake any filing or registration with, any Governmental Authority), to an additional banka bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution or other entity (an "AssigneeASSIGNEE") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Credit Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF to the WKI Credit Agreement, with such changes thereto as are appropriate for this Credit Agreement, executed by such Assignee, such assigning the Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereofAffiliate of the Lender, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording Borrower), provided that, except in the Register; provided that case of an assignment of all of the Lender's interests under this Agreement, unless otherwise agreed to by the Borrower, no such assignment to an Assignee (other than any Lender or any affiliate thereofAffiliate of the Lender) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender5,000,000. Upon such execution, delivery, acceptance delivery and recordingacceptance, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a the Lender hereunder with a Commitment as set forth therein, therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 the assigning Lender's rights and obligations under this Agreement, such the assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Agreement to the contrary, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any of the events described in Section 8(f) 11.5 of the WKI Credit Agreement shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in continuing with respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the 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 Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in In the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to assignment by the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant to this paragraph (iii) of less than all of its interest under this Credit Agreement, the Borrower, the Lender and the Assignee shall cooperate to make appropriate amendments to this Credit Agreement or which has been delivered to make customary provision for multiple lenders hereunder. In the event that ▇▇▇▇▇▇, Inc. is no longer a Lender hereunder, the Lenders hereunder at such Lender by or on behalf time shall appoint one of the Parent or Lenders to act as "Junior Security Agent" under the Borrowers Junior Security Agreement; until such time, ▇▇▇▇▇▇, Inc. shall act in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreementcapacity.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and business, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Loans or any fees or other amounts payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participationparticipating interest, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to the extent subject to such participating interest. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits and subject to the obligations of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a LenderLender or Assignee under Section 10.6(c); provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section; and provided, further, that (A) such Participant agrees to be subject to the provisions of Section 2.19 and 2.20 as if it were an Assignee under Section 10.6(c) and(B) no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate thereof Affiliate or Related Fund of a Lender or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lenders (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent from the applicable parties need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period any Bank of 120 days following America Entity in its capacity as Assignor (other than, solely in the Closing Datecase of any assignment of Revolving Credit Commitments, the consent of the Issuing Lender and the Swing Line Lenders (which, in each case, shall not be unreasonably withheld or delayed)), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a the Borrower, the Administrative Agent, the Issuing Lender or an affiliate thereofthe Swing Line Lenders is required pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that with respect to assignments of Revolving Credit Commitments, no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Agreement) and, after giving effect thereto, such Assignor shall have Revolving Credit Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of aggregating at least $5,000,000 (if holding any), unless otherwise agreed by the assigning LenderBorrower and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts and minimum hold amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of No such assignment shall be made (i) to the Borrower or any tax, assessment or other charge or levy imposed by or on behalf of the United States Borrower's Affiliates or Subsidiaries or (ii) to any Defaulting Lender or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans)its Subsidiaries, or Exhibit I-3 any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"ii). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if No such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) assignment shall deliver be made to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b)a natural Person.
(f) An Alternative Note In connection with any assignment of rights and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration obligations of any Defaulting Lender hereunder, no such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the Register as provided in event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this Section 11.6(f)paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(g) The Administrative Agent shall shall, on behalf of the Borrower, maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment by the applicable Assignor or Assignee to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for or to a period Bank of 120 days following the Closing Date America Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersThe Borrower, at their its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date effective date of the relevant assignment and shall otherwise be in the form of the Note or Notes replaced thereby.
(i) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iij) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Sources: Credit Agreement (Northwestern Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative AgentAgents, the Issuing Lenders, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents, each LenderIssuing Lender and each Lender (provided that a Borrower may merge or consolidate with another Borrower in accordance with Section 7.04).
(b) Any Lender may, without the consent of of, or notice to, any Borrower or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Company or any of its controlled Affiliates, a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or a Defaulting Lender) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to enforce this agreement or to approve any amendment or waiver of any provision of 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 require the principal ofconsent of all Lenders, all affected Lenders or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent all affected Lenders under a particular Facility pursuant to the assignment or transfer by any Section 10.01. Each Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.07(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender (subject to the requirements and limitations therein, including the requirements under Section 2.20(e), (f) or (h) (it was a being understood that the documentation required under Section 2.20(e), (f) or (h) shall be delivered to the transferor Lender)); provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurredoccurred except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and interest thereon) of each participant’s interest in the Loans or other Obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrowers, the Lenders and each Agent 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 notice to the contrary.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender one or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity more Eligible Assignees (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, with the Letters written consent of the Administrative Agent, the Company and, in the case of any assignment of Revolving Credit and Commitments, each Issuing Lender (in each case which shall not be unreasonably withheld, delayed or conditioned and, in the Notes case of the Company, shall be deemed given if such consent is not received or expressly declined in writing within ten Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DD or any other form approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Company, the Administrative Agent or each Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower Company and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent (A) via an electronic settlement system satisfactory to the Administrative Agent or (B) if previously agreed by the Administrative Agent, manually, for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount (determined as of the date of the relevant Assignment and Acceptance or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) of less than (i) $2,000,000 1,000,000, in the case of Term Loans and (ii) $2,500,000, in the case of Revolving Credit Commitments and Delayed Draw Commitments (in each case, other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Company and the NotesAdministrative Agent (each such consent not to be unreasonably withheld or delayed). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.19, 2.20 and 10.05 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph Section 10.06 to the contrary, (cI) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Company shall not be required to be executed and delivered by the Borrowers, for any assignment which (x) in the case of any assignment of Term Loans (other than Delayed Draw Commitments and Term A-1 Loans), to another Lender, an Affiliate of a Lender or a Related Fund of a Lender and, in the case of any assignment of Revolving Credit Commitments or Delayed Draw Commitments or Term A-1 Loans, to another Revolving Credit Lender or Delayed Draw Lender, an Affiliate of a Revolving Credit Lender or Delayed Draw Lender or a Related Fund of a Revolving Credit Lender or Delayed Draw Lender, (y) that occurs at any time when any Event of the events described in Section Default under Article 8(a) or Article 8(f) shall have occurred and be continuingcontinuing or (z) during the primary syndication of the Term Loans and the Term Loan Commitments to Persons identified in writing to the Company as syndication targets prior to the Closing Date and (II) the consent of the Administrative Agent shall not be required (x) for any assignment of Term Loans (other than Delayed Draw Commitments and Term A-1 Loans) to another Lender, an Affiliate of a Lender or a Related Fund of a Lender or (y) for any assignment of Revolving Credit Commitments and related Revolving Credit Loans to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that could become completely exempt from withholding it is the legal and beneficial owner of the interest being assigned thereby free and clear of any taxadverse claim and that its Term Loan Commitment and Revolving Credit Commitment, assessment and the outstanding balances of its Term Loans and Revolving Credit Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in clause (i) above or otherwise agreed in writing between such assigning Lender and such assignee, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other charge Loan Document or levy imposed by any other instrument or on behalf document furnished pursuant hereto, or the financial condition of the United States Company or any taxing authority thereof ("U.S. Taxes") in respect of payment Subsidiary or the performance or observance by the Company or any Subsidiary of any Obligations due of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Non-U.S. Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 6.01 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; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral 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; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through as are delegated to the Administrative Agent), Agent and the Borrowers agree thereuponCollateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered be performed by it as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesa Lender.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (orThe Administrative Agent, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each acting for this purpose as agent of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s)Borrowers, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at one of its address referred to addresses in Section 11.2 the City of New York a copy of each Assignment and Acceptance delivered to it and a register with respect to the applicable Facility (the "each, a “Register"”) for the recordation of the names and addresses of the applicable Lenders (including Alternative Noteholders) and the Commitment of, and principal amount of the applicable Loans owing to, each applicable Lender from time to time. The entries in the such Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. The Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in such Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on such Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon, if requested by the Assignee, one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Company marked “canceled”. Such Register shall be available for inspection by the Borrowers or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(hf) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.06(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration which fee may be waived or reduced in the sole discretion of the Administrative Agent), an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and processing fee shall be payable any applicable tax forms and other documentation required pursuant to Sections 2.20(e), (yf) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderh), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Register. Each Borrower. On or prior to such effective date, the Borrowers, at their its own expense, promptly upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes and/or Term A-1 Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes and/or Term A-1 Notes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes and/or Term A-1 Notes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(ig) Each of the Parent and the Borrowers authorizes each Subject to Section 10.15, any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.06, disclose to the assignee or participant or proposed assignee or participant any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning relating to the Parent, the Borrowers and their respective Affiliates which has been delivered Company furnished to such Lender by or on behalf of the Parent or Company, including notification of the Borrowers pursuant inclusion of, if applicable, material non-public information regarding the Company and/or its Restricted Subsidiaries.
(h) For avoidance of doubt, the parties to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.acknowledge
Appears in 1 contract
Sources: Credit Agreement (Harsco Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and business, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.15, 2.21 2.16 and 2.22 90 84 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.16, such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and business, in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate thereof affiliate, Related Fund or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent from the applicable parties need be obtained by Lehm▇▇ any Deutsche Bank Entity or by any L▇▇▇mercial Paper Inc. for a period ▇▇ Entity in their capacity as Assignors (other than, solely in the case of 120 days following any assignment of Revolving Credit Commitments, the Closing Dateconsent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed)), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a the Borrower, the Administrative Agent, the Issuing Lender or an affiliate thereofthe Swing Line Lender is required pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that with respect to assignments of Revolving Credit Commitments, no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Agreement) and, after giving effect thereto, such Assignor shall have Revolving Credit Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of aggregating at least $5,000,000 (if holding any), unless otherwise agreed by the assigning LenderBorrower and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing. For purposes of the minimum assignment amounts and minimum hold amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment by the applicable Assignor or Assignee to the Administrative Agent of a registration and processing fee of $2,000 3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ or to a Deutsche Bank Entity or a L▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date ▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersThe Borrower, at their its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beupon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date effective date of the relevant assignment and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(f), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Sources: Credit Agreement (Northwestern Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative Agents, the Canadian Funding Agent, the Issuing Lenders, the Collateral Agents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each U.S. Lender or Canadian Lender, as the case may be.
(b) Any Lender may, without the consent of the Borrowerseither Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers relevant Borrower and the relevant Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 would: reduce the principal of, or interest on, the Notes Loans or any fees payable hereunder, ; postpone the date of the final maturity of the NotesLoans, consent to the assignment or transfer by any Borrower scheduled date of amortization of any Term Loan or the scheduled date of its rights and obligations under this Agreement and any payment of interest or fees on the other Loan Documents, Loans; release all or a substantial portion substantially all of the Collateral (other than in connection with any sale Collateral; release all or other disposition of assets permitted by Section 7.6) or any guarantee substantially all of the ObligationsGuarantors from their obligations under the Guarantee and Collateral Agreements; or increase the amount or extend the expiration date of any Lender’s Revolving Commitment, in each case described in this sentence to the extent subject to such participation. The Borrowers agree Each Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.25, 2.21 2.26, 2.27 and 2.22 90 84 10.5(d) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.26, such Participant shall have complied with the requirements of said such Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof Lender Affiliate or, with the consent of the Designated relevant Borrower and the relevant Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the relevant Administrative Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the relevant Borrower and the relevant Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than or the Canadian Dollar Equivalent thereof), in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and the Notes)its Lender Affiliates, if any. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Concurrently with the execution and delivery of each Assignment and Acceptance, the assigning Lender shall surrender to the relevant Administrative Agent the Note a portion of which is being assigned, and the relevant Borrower shall execute and deliver a new applicable Note to the Assignee in the amount of its Commitment being assumed, and a new applicable Note to the assigning Lender in the amount of its Commitment being assigned, after giving effect to such assignment, such Notes to constitute the applicable Note for all purposes of this Agreement and of the other Loan Documents. Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated either Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxEach Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)relevant Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 relevant Lenders (including Alternative Noteholders) and the Commitment of, and the principal amount of the Loans owing to, each relevant Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowerseach Borrower, the each other Loan Party, each Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of (x) an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), and (andy) such forms, in the case of an Assignee that is not then a Lender certificates or an affiliate thereofother evidence, by the Designated Borrower and the Administrative Agent) if any, with respect to U.S. federal withholding tax pursuant to Section 2.26(d), together with payment to the relevant Administrative Agent of a registration and processing fee of $2,000 3,500 (except provided that (A) no such registration and processing fee shall be payable if the Assignee is a Lender Affiliate of the Assignor within the definition of clause (ya) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (zb) of the definition of Lender Affiliate, and (B) only one such fee shall be required in connection with a simultaneous assignment to Lender Affiliates of the case Assignee within the definition of an Assignee which is already a clause (c) of the definition of Lender or is an affiliate of a LenderAffiliate), the such Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Each Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the Borrowers, the Lenders, the Administrative AgentAgents, the Issuing Lenders, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents, each LenderIssuing Lender and each Lender (provided that a Borrower may merge or consolidate with another Borrower in accordance with Section 7.04).
(b) Any Lender may, without the consent of of, or notice to, any Borrower or the BorrowersAdministrative Agent, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Company or any of its controlled Affiliates, a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or a Defaulting Lender) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to enforce this agreement or to approve any amendment or waiver of any provision of 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 require the principal ofconsent of all Lenders, all affected Lenders or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent all affected Lenders under a particular Facility pursuant to the assignment or transfer by any Section 10.01. Each Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.07(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Each Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender (subject to the requirements and limitations therein, including the requirements under Section 2.20(e), (f) or (h) (it was a being understood that the documentation required under Section 2.20(e), (f) or (h) shall be delivered to the transferor Lender)); provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurredoccurred except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and interest thereon) of each participant’s interest in the Loans or other Obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participant’s interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and the Borrowers, the Lenders and each Agent 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 notice to the contrary.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender one or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity more Eligible Assignees (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, with the Letters written consent of the Administrative Agent, the Company and, in the case of any assignment of Revolving Credit Commitments, the Swing Line Lender and each Issuing Lender (in each case which shall not be unreasonably withheld, delayed or conditioned and, in the Notes case of the Company, shall be deemed given if such consent is not received or expressly declined in writing within ten Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DD or any other form approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that is not then a the Company, the Administrative Agent, the Swing Line Lender or an affiliate thereofeach Issuing Lender is required pursuant to the foregoing provisions, by the Designated Borrower Company and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent (A) via an electronic settlement system satisfactory to the Administrative Agent or (B) if previously agreed by the Administrative Agent, manually, for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate Affiliate or Related Fund thereof) shall be in an aggregate principal amount (determined as of the date of the relevant Assignment and Acceptance or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date) of less than (i) $2,000,000 1,000,000, in the case of Term Loans and (ii) $2,500,000, in the case of Revolving Credit Commitments (other than in the case of an assignment of all of a Lender's ▇▇▇▇▇▇’s interests under this Agreement Agreement), unless otherwise agreed by the Company and the NotesAdministrative Agent (each such consent not to be unreasonably withheld or delayed). Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.19, 2.20 and 10.05 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph Section 10.06 to the contrary, (cI) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes Company shall not be required to be executed and delivered by the Borrowers, for any assignment which (x) in the case of any assignment of Term Loans to another Lender, an Affiliate of a Lender or a Related Fund of a Lender and, in the case of any assignment of Revolving Credit Commitments to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender, (y) that occurs at any time when any Event of the events described in Section Default under Article 8(a) or Article 8(f) shall have occurred and be continuingcontinuing or (z) during the primary syndication of the Term Loans and the Term Loan Commitments to Persons identified in writing to the Company as syndication targets prior to the Closing Date and (II) the consent of the Administrative Agent shall not be required (x) for any assignment of Term Loans to another Lender, an Affiliate of a Lender or a Related Fund of a Lender or (y) for any assignment of Revolving Credit Commitments and related Revolving Credit Loans and/or Swing Line Loans, as applicable, to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated.
(d) Any Non-U.S. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that could become completely exempt from withholding it is the legal and beneficial owner of the interest being assigned thereby free and clear of any taxadverse claim and that its Term Loan Commitment and Revolving Credit Commitment, assessment and the outstanding balances of its Term Loans, Revolving Credit Loans and Swing Line Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in clause (i) above or otherwise agreed in writing between such assigning Lender and such assignee, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other charge Loan Document or levy imposed by any other instrument or on behalf document furnished pursuant hereto, or the financial condition of the United States Company or any taxing authority thereof ("U.S. Taxes") in respect of payment Subsidiary or the performance or observance by the Company or any Subsidiary of any Obligations due of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Non-U.S. Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 6.01 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; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral 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; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through as are delegated to the Administrative Agent), Agent and the Borrowers agree thereuponCollateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered be performed by it as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesa Lender.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (orThe Administrative Agent, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each acting for this purpose as agent of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s)Borrowers, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at one of its address referred to addresses in Section 11.2 the City of New York a copy of each Assignment and Acceptance delivered to it and a register with respect to the applicable Facility (the "each, a “Register"”) for the recordation of the names and addresses of the applicable Lenders (including Alternative Noteholders) and the Commitment of, and principal amount of the applicable Loans owing to, each applicable Lender from time to time. The entries in the such Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. The Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in such Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on such Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon, if requested by the Assignee, one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Company marked “canceled”. Such Register shall be available for inspection by the Borrowers or any Lender (with respect to any entry relating to such ▇▇▇▇▇▇’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
(hf) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.06(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration which fee may be waived or reduced in the sole discretion of the Administrative Agent), an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and processing fee shall be payable any applicable tax forms and other documentation required pursuant to Sections 2.20(e), (yf) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderh), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Register. Each Borrower. On or prior to such effective date, the Borrowers, at their its own expense, promptly upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(ig) Each of the Parent and the Borrowers authorizes each Subject to Section 10.15, any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.06, disclose to the assignee or participant or proposed assignee or participant any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning relating to the Parent, the Borrowers and their respective Affiliates which has been delivered Company furnished to such Lender by or on behalf of the Parent or Company, including notification of the Borrowers pursuant inclusion of, if applicable, material non-public information regarding the Company and/or its Restricted Subsidiaries.
(h) For avoidance of doubt, the parties to this Agreement or which has been delivered acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such Lender by or on behalf of the Parent or the Borrowers provisions do not prohibit assignments creating security interests in connection with such Lender's credit evaluation of the ParentLoans and Notes, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (whichincluding, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Person.withou
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (ENVIRI Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.13, 2.21 2.14 and 2.22 90 84 2.15 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.14, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cinemastar Luxury Theaters Inc)
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender except pursuant to Section 6.11.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing ----------- to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.16, 2.21 2.17 and 2.22 90 84 2.18 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.17, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at -------- any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations -------- under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement) unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section 8(f) Default shall have occurred and be continuingcontinuing with respect to the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.18, 2.21 2.19 and 2.22 90 84 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.19, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate Affiliate thereof or a Related Fund of any Lender or, with the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofAffiliate thereof or a Related Fund of any Lender) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Section Default pursuant to Sections 8(a), 8(c) or 8(f) shall have occurred and be continuingcontinuing with respect to the Borrower.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Commitment of, and the 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 BorrowersBorrower, each other Loan Party, the Administrative Agent Agents and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personf) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Agent and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(bii) Any Lender may, without the consent of the Borrowers, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions banks or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "ParticipantPARTICIPANTS") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsCredit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Credit Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Credit Document, or any consent to any departure by any Loan Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the principal ofstated rate, or forgive any portion, or postpone the date for the payment, of any interest onor fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the Notes aggregate amount of the Commitments of any Lender or any fees payable hereunder, postpone the date of the final scheduled maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoan, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 13.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 2.10 and 2.22 90 84 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was were a Lender; provided that, in the case of Section 2.21, such Participant shall have complied with the requirements of said Section and provided, further, PROVIDED that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(ciii) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate Affiliate (with the consent of the Borrower if any increased costs would result therefrom) thereof or an Approved Fund or, with the consent of the Designated Borrower and the Administrative Agent (which, which in each case, case shall not be unreasonably withheld withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Datemake any filing or registration with, any Governmental Authority), to an additional bankbank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution or other entity (an "AssigneeASSIGNEE") all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Credit Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DF, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, Affiliate thereof by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than , PROVIDED that, except in the case of an assignment of all of a Lender's interests under this Agreement Agreement, unless otherwise agreed to by the Borrower and the Notes). Such Administrative Agent, no such assignment need not to an Assignee (other than any Lender or any Affiliate thereof) shall be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans in an aggregate principal amount of the assigning Lenderless than $5,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, 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 assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Agreement to the contrary, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any of the events described in Section 8(f) 11.5 shall have occurred and be continuingcontinuing with respect to the Borrower.
(db) Any Non-U.S. Nothing herein shall prohibit any Lender that could become completely exempt from withholding 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 Borrower hereby agrees that, upon request of any taxLender at any time and from time to time after the Borrower has made its initial borrowing hereunder, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due Borrower shall provide to such Non-U.S. Lender under this Agreement if Lender, at the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower's own expense, and the Borrowers agree thereupona promissory note, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in C-1, C-2 or C-3, as the case of Obligations in respect of Tranche A Term Loans)may be, Exhibit I-2 (in evidencing the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans and Tranche C Term Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notesrespectively, owing to such Lender.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(gc) The Administrative Agent Agent, on behalf of the Borrower, shall maintain at its the address of the Administrative Agent referred to in Section 11.2 13.2 a copy of each Assignment and Acceptance delivered to it and a register (the "RegisterREGISTER") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, 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 BorrowersBorrower, 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 Loan recorded therein owner thereof for all purposes of this AgreementAgreement and the other Credit Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(hi) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate Affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby.
(ie) Each of Subject to Section 13.16, the Parent and the Borrowers Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "TransfereeTRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers Borrower and their respective its Affiliates which that has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Parent or the Borrowers Borrower in connection with such Lender's credit evaluation of the Parent, the Borrowers Borrower and their respective its Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of , PROVIDED that neither the Administrative Agent and the Borrowers (which, in each case, nor any Lender shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note provide to any other Person.Transferee or prospective Transferee any of the Confidential Information unless such person shall have previously executed a Confidentiality Agreement in the form of Exhibit H.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentBorrower, the BorrowersParent, the Lenders, the Administrative Agent, all future holders of the Notes Term Loan and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of the Term Loan only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities Eligible Assignees (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Term Loan Commitment or Term Loan of such Lender or any other interest of such Lender hereunder and under the other Loan Documentshereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan DocumentsAgreement, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Documentthis Agreement, or any consent to any departure by any Loan Party the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Notes Term Loan or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsTerm Loan, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Term Loan are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, neither such Participant Participant, on the one hand, nor the Borrower nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be deemed required to have agreed to share deal directly with one another in respect of, the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunderparticipation of such Participant. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Term Loan Commitments and the Loans Term Loan outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (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) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $5,000,000, (ii) has been designated as a “Voting Participant” in a notice (a “Voting Participant Notice”) sent by the relevant Lender to the Administrative Agent and (iii) receives, prior to becoming a “Voting Participant,” the consent of the Administrative Agent and the Borrower (each such consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with clause (b)) (a “Voting Participant”), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by the Lenders and the voting rights of the selling Lender shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 10.6 hereto shall be a Voting Participant without delivery of a Voting Participant Notification and without the prior written consent of the Parent and the Administrative Agent. The selling Lender and the Voting Participant shall notify the Administrative Agent and the Borrower within three (3) Business Days of any termination, reduction or increase of the amount of, such participation. The Loan Parties and the Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not itself a Voting Participant.
(c) Any Lender may(an “Assignor”) shall be permitted to assign, in the ordinary course of its business and in accordance with applicable law, at any time and from time all or a portion of its Term Loan Commitment or its portion of the Term Loan hereunder to time assign an Eligible Assignee (an “Assignee”) with the consent, not to any be unreasonably withheld, of (a) the Borrower, unless (i) the Assignee is a Lender or any affiliate thereof ora Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to the Borrower or the Parent), has occurred and is continuing; provided that such consent shall be deemed given if the Borrower has not responded within 15 days of the Designated Borrower and a written request from the Administrative Agent for such consent and (whichb) the Administrative Agent, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes case pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DAssumption, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Registerrelevant Register (it being understood and agreed that such Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Borrower, to make an assignment under this Section 10.6(c) if such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in would increase the case of an assignment of all of a Lender's interests cost under this Agreement and to the Notes). Such assignment need not be ratable Borrower, including without limitation under Section 2.17 or 2.18, as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lenderdate of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to the Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recordingrecording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Term Loan Commitment or Term Loan as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 8(f) shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register ("U.S. Taxes"each, a “Register”) in respect for the recordation of payment the names and addresses of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request Lenders and the Borrowers (through the Administrative Agent)Term Loan Commitments of, and the Borrowers agree thereuponprincipal amount (and stated interest) of the portion of the Term Loan owing to, each Lender from time to exchange time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the portion of the Term Loan and any promissory 91 85 note(s) Notes evidencing such Obligations portion of the Term Loan recorded therein for promissory note(s) registered as provided in paragraph (f) below and substantially all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the relevant Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) Note evidencing such Obligation(s)Loan, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereofAssignment and Assumption, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall Notes may be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f)Assignee, if requested by such Assignee.
(ge) The Administrative Agent shall maintain at its address referred Except in the case of an assignment to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and Lender, a register (the "Register") for the recordation Lender Affiliate or an assignment of the names and addresses of the Lenders (including Alternative Noteholders) and the Commitment of, and principal entire remaining amount of the Loans owing toassigning Lender’s Term Loan Commitments or Term Loan, the amount of the Term Loan Commitment or Term Loan of the assigning Lender subject to each Lender from time such assignment (determined as of the date the Assignment and Assumption with respect to time. The entries in such assignment is delivered to the Register Administrative Agent) shall not be conclusiveless than $5,000,000, in unless the absence of manifest error, Borrower and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner otherwise consent, provided that (1) no such consent of the Loan recorded therein for all purposes of this Agreement. The Register Borrower shall be available for inspection by the Borrowers required if an Event of Default under Section 8(a) or any 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender at any reasonable time and from time to time upon reasonable prior noticeits Lender Affiliates, if any.
(hf) Upon its receipt of an Assignment and Acceptance Assumption in conformity with Section 10.6(c), executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 10.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender)3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the relevant Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(ig) Each For avoidance of doubt the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6.
(iih) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the Administrative Agent and the Borrowers type described in paragraph (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Persong) above.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentParent REIT, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities other than a natural Person or a Defaulting Lender (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 require the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date consent of the final maturity of the Notes, consent all affected Lenders pursuant to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation10.
1. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17 and 2.17(c) (subject to the requirements and limitations therein, 2.21 and 2.22 90 84 including the requirements under 2.18(f) (it being understood that the documentation required under Section 2.17(c)(f) shall be delivered to the participating Lender) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a LenderLender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided thatthat such participant agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (c) of this Section, and, in the case of Section 2.212.17(c), such Participant shall have complied with the requirements of said Section Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate thereof or Approved Fund (other than a Defaulting Lender) or, with the consent of the Designated Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for the Arrangers or the Administrative Agent, each in its capacity as a period of 120 days following the Closing DateLender), to an additional bank, financial institution or other entity (an "“Eligible Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and AcceptanceAssumption, substantially in the form of Exhibit DE, executed by such Assignee, Eligible Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Administrative Agent or the Issuing Lenders is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Eligible Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 (other than in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AcceptanceAssumption, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AcceptanceAssumption, have the rights and obligations of a Lender hereunder with a Commitment the Revolving Credit Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and AcceptanceAssumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.17, 2.17(c) and 10.5 in respect of the period prior to such effective date); provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.6(b). In the event that Borrower fails to object by written notice within five Business Days after the receipt of a request to approve an assignment pursuant to this Section 10.6(c), the Borrower shall be deemed to have consented to such assignment. Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Default under Section 8(f8.1(a) or 8.1(f) shall have occurred and be continuing, provided that parties hereby agree that ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated may, without notice to the Loan Parties, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Approved Funds shall be aggregated.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall shall, acting for this purpose as a nonfiduciary agent of the Borrower, maintain at its address referred to in Section 11.2 10.2 a copy of each Assignment and Acceptance Assumption delivered to it and a register (the "“Register"”) for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the Revolving Credit Commitment of, and principal amount (and stated interest) 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Eligible Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent of the Borrower (solely for tax purposes) shall maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Revolving Credit Commitments, Loans and other Obligations held by it (the “Participant Register”); provided that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) or proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended or successor version). For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such interest in the Revolving Credit Commitments, Loans and other Obligations as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary.
(he) Upon its receipt of an Assignment and Acceptance Assumption executed by an assigning Lender Assignor and an Eligible Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,500 (treating multiple, simultaneous assignments by or to two or more Approved Funds as a single assignment) (except that no such registration and processing fee shall be payable (yx) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following or to the Closing Date Arrangers, the Administrative Agent or their Control Investment Affiliates or (zy) in the case of an Eligible Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Eligible Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment assumed or acquired by it pursuant to such Assignment and Acceptance Assumption and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may beCommitment upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Second Amendment Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with Notwithstanding anything to the prior consent of contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other Indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
(h) Notwithstanding anything to the contrary contained herein, no assignment under this Section 10.6 shall be made to (i) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii).
(i) Notwithstanding anything
Appears in 1 contract
Sources: Credit Agreement (Essential Properties Realty Trust, Inc.)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative AgentAgents, all future holders of the Notes Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.17, 2.21 2.18 and 2.22 90 84 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.18, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Designated Borrower Borrower, the Issuing Lender (in the case of assignments of Revolving Credit Commitments only) and the Administrative Agent Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent of the Borrower or any Agent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 180 days following the Closing DateDate and (y) the consent of the Borrower need not be obtained with respect to any assignment of funded Term Loans), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DE, executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, the Agents or the Issuing Lender is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 5,000,000 and result in the Assignor having aggregate Commitments of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement Agreement), in each case unless otherwise agreed by the Borrower, the Syndication Agent and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrowers Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Delayed Draw Term Note Loan Commitment and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Delayed Draw Term Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Tranche A Delayed Draw Term Loan Commitment and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term NoteNotes, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) Assignor in an amount equal to the Revolving Credit Commitment, Tranche A Delayed Draw Term Loan Commitment and/or Tranche B Loanapplicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note to any other Personlaw.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Loans and their respective successors and assigns, except that neither (i) the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each LenderLender and (ii) any attempted assignment or transfer by the Borrower without such consent shall be null and void.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (other than the Borrower or any of its Affiliates or a natural Person) (each, a "“Participant"”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such any amendment, waiver or consent would reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date described in clause (i) of the final maturity of the Notes, consent proviso to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) 8.7 as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.12, 2.21 2.13 and 2.22 90 84 2.14 (and subject to the limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.212.13, such Participant shall have complied with the requirements of said Section 2.13 as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. Each Lender that sells a participation shall, on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Person (other than the Borrower or any affiliate thereof orof its Affiliates) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within five (5) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of (x) any assignment to a Person that is not then a Lender or a Lender Affiliate or (y) any assignment of a Commitment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an affiliate thereof, Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that , no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $2,000,000 (other than 5,000,000, in each case except in the case of an assignment of all of a Lender's ’s interests under this Agreement and the Notes)Agreement. Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any provision of this paragraph (c) and paragraph (g) of this Section 11.6, Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Designated Borrower shall not be required, and, unless requested by or the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for Administrative Agent any assignment which occurs at any time when any or all of the events described Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8(f) shall have occurred and be continuing8.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 8.2 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 (including Alternative Noteholders) and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (andand any other Person whose consent is required by Section 8.6(c), in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 4,000 (except that no such registration fee not payable with respect to assignments to an Assignor’s Affiliate and processing such fee shall not to be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. the Borrower, except for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lenderassignment pursuant to Section 2.17), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank or any other central bank in accordance with applicable law or law.
(iig) with The Borrower, upon receipt of written notice from the prior consent relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentCompany, the BorrowersBorrower, the Lenders, the Administrative Agent, all future holders of the Notes Revolving Loans and their respective successors and assigns, except that neither the Parent nor the Borrowers Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowersBorrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "“Participant"”) participating interests in any Revolving Loan owing to such Lender, any Note held by such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's ’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Revolving Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's ’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Revolving Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsRevolving Loans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Revolving Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.203.9, 2.21 3.10 and 2.22 90 84 3.11 with respect to its participation in the Revolving Commitments and the Revolving Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.213.10, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an “Assignor”) may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender Lender, or any affiliate thereof Lender Affiliate or any Approved Fund or, with the consent of the Designated Borrower Borrower, the Issuing Lender and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "“Assignee"”) all or any part of its rights and obligations under this Agreement, the Letters of Credit Agreement and the Notes other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender (andAssignor and any other Person whose consent is required pursuant to this paragraph, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) and delivered to the Administrative Agent (in the case of an assignment hereunder that does not require the consent of the Borrower, with a copy to the Borrower) for its acceptance and recording in the Register; provided that unless otherwise agreed by the Borrower, the Issuing Lender and the Administrative Agent (x) no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 10,000,000 (other than except in the case of an assignment of all of a Lender's ’s interests under this Agreement Agreement) and (y) after giving effect to such assignment the NotesAssignor’s Revolving Commitments shall be not less than $10,000,000 (except in the case of an assignment of all of a Lender’s interests under this Agreement). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans For purposes of the assigning Lenderproviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Revolving Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 Assignor’s rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.610.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any an Event of the events described in Default pursuant to Section 8(f) (with respect to the Borrower) shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Revolving Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c).
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the Revolving Commitment of, and the principal amount of the Revolving 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 BorrowersBorrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Revolving Loans and any Notes evidencing the Revolving Loans recorded therein for all purposes of this Agreement. The Register Any assignment of any Revolving Loan, whether or not evidenced by a Note, shall be available effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Revolving Loan evidenced by a Note shall be registered on the Register only upon surrender for inspection registration of assignment or transfer of the Note evidencing such Revolving Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior noticedesignated Assignee.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and Assignor, an Assignee (and, in the case of an Assignee that and any other Person whose consent is not then a Lender or an affiliate thereof, required by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a LenderSection 10.6(c), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to on the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it date determined pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced therebythereto.
(if) Each For avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any pledge or which has been delivered to such assignment by a Lender by or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law or law.
(iig) with The Borrower, upon written notice from a Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the prior consent type described in paragraph (f) above.
(h) Each of the Company, the Borrower, each Lender and the Administrative Agent and the Borrowers (which, in each case, shall hereby confirms that it will not be unreasonably withheld institute against a Conduit Lender or delayed), pledging its rights in connection with any Loan or Note to join any other PersonPerson in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the BorrowersBorrower, the Lenders, the Administrative AgentArrangers, the Agents, all future holders of the Notes Loans and Letters of Credit and their respective successors and assignsassigns permitted hereby, except that neither the Parent Holdings nor the Borrowers Borrower may assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the BorrowersBorrower or any other Person, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note Loan for all purposes under this Agreement and the other Loan Documents, and the Borrowers Borrower and the Administrative Agent Agents shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of 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 Notes Loans or any fees payable hereunder, or postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the ObligationsLoans, in each case to the extent subject to such participation. The Borrowers agree Borrower agrees that if amounts outstanding under this Agreement and the Notes Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any NoteAgreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a10.7(a) as fully as if it such Participant were a Lender hereunder. The Borrowers Borrower also agree agrees that each Participant shall be entitled to the benefits of Sections 2.202.19, 2.20 and 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was such Participant were a Lender; provided that, in the case of Section 2.212.20, such Participant shall have complied with the requirements of said Section 2.20(e); and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in the ordinary course of its business and in accordance with applicable lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to (i) an Arranger and its affiliates, (ii) any Lender or any affiliate Lender Affiliate or Affiliated Fund of the assigning Lender or another Lender thereof (each, an "Eligible Assignee") or, (iii) with the consent of the Designated Administrative Agents, and if no Event of Default has occurred and is continuing, the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit DD (an "Assignment and Acceptance"), executed by such Assignee, Assignee and such assigning Lender Assignor (and, in where the case consent of an Assignee that the Borrower, or the Administrative Agent is not then a Lender or an affiliate thereofrequired pursuant to the foregoing provisions, by the Designated Borrower and the Administrative Agentsuch other Persons) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister together with a processing and recordation fee of $3,500; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereofLender Affiliate thereof or Affiliated Fund of any Lender) shall be in an aggregate principal amount of less than $2,000,000 1,000,000 (with respect to Tranche A Term Loans and Tranche A Term Loan Commitments and $2,500,000 with respect to all other Loans and Commitments (other than than, in each case, in the case of an assignment of all of a Lender's interests under this Agreement Agreement), unless otherwise agreed by the Borrower and the Notes)Administrative Agent. Such Any such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning LenderFacilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment Commitments and/or Loans as set forth therein, and (y) the assigning Lender Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, 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 LenderAssignor's rights and obligations under this Agreement, such assigning Lender Assignor shall cease to be a party hereto, except as to Section 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6Section, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which that occurs at any time when any Event of the events described in Section 8(f) Default shall have occurred and be continuing.
(d) Any Non-U.S. Lender that could become completely exempt from withholding of any taxThe Administrative Agent shall, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent)Borrower, and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.21(b).
(f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f).
(g) The Administrative Agent shall maintain at its address referred to in Section 11.2 10.2 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 (including Alternative Noteholders) and the 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 BorrowersBorrower, the Administrative each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee (if requested by such Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrowers Borrower or any Lender (with respect to any entry relating to such Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice.
(he) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender Assignor and an Assignee (and, in any case where the case consent of an Assignee that any other Person is not then a Lender or an affiliate thereofrequired by Section 10.6(c), by the Designated Borrower and the Administrative Agenteach such other Person) together with any tax forms required under Section 2.20 and payment to the Administrative Agent of a registration and processing fee of $2,000 3,500 (except that no such registration and processing fee shall be payable (y) by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is a Lender Affiliate or an affiliate Affiliated Fund (and in the case of assignments on the same day from a LenderLender to more than one fund managed or advised by the same investment advisor (which funds are not then Lenders hereunder), only a single $3,500 registration and processing fee shall be payable for all such assignments by such Lender to such funds)), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the BorrowersBorrower, at their its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B applicable Term NoteNotes, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Commitment and/or applicable Tranche A Loan and/or Tranche B LoanTerm Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender Assignor has retained a Revolving Credit Commitment, Commitment and/or Tranche A Loan and/or Tranche B LoanTerm Loans, as the case may be, upon request, a new Revolving Credit Note, Tranche A Term Note and/or Tranche B or Term Note, as the case may be, to the order of the assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender Assignor or its registered assigns) assigns in an amount equal to the Revolving Credit Commitment, Commitment or applicable Tranche A Loan and/or Tranche B LoanTerm Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby.
(if) Each For the avoidance of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parentdoubt, the Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the Borrowers pursuant parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including any pledge or which has been delivered to such assignment by a Lender by of any Loan or on behalf of the Parent or the Borrowers in connection with such Lender's credit evaluation of the Parent, the Borrowers and their respective Affiliates prior to becoming a party to this Agreement.
(j) Nothing herein shall prohibit or restrict any Lender from (i) pledging or assigning any Note to any Federal Reserve Bank in accordance with applicable law law, provided that no such pledge or (ii) with assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto. In the prior case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund as security for such obligations or securities; provided that any foreclosure or similar action by such trustee or representative shall be subject to the provisions of this Section 10.6 concerning assignments.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (whichi) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. 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 Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in each casefull of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), pledging its rights in connection with any Loan or Note withheld) to any other Personfinancial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to Holdings, the Borrower and its Subsidiaries may be disclosed only with the Borrower's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)