Successors and Assigns Participations Assignments. This Agreement shall be binding upon and shall inure to the benefit of Borrower and the Lenders and their respective successors and assigns. (a) The foregoing shall not authorize any assignment by Borrower, of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the Lenders. (b) The Borrower and Agent acknowledge that each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assignee, the identity of which institution is approved by Borrower and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of Borrower. The Borrower authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) and Agent, any and all financial information in such Lender’s possession concerning the Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 hereof. (c) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions: (i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and (ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment. (d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement): (i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation; (ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder; (iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and (iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted. (e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry. (f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Noble International, Ltd.), Credit Agreement (Noble International, Ltd.)
Successors and Assigns Participations Assignments. This Agreement (a) The Loan Documents shall be binding upon upon, and shall inure to the benefit of Borrower and the Lenders parties thereto and their respective successors and assigns.
, except that (ai) The foregoing shall Borrower may not authorize assign or transfer any assignment by Borrower, of its rights right or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) obligations under any Loan Document without the prior written approval consent of the LendersAgent, the Issuing Bank and all the Banks, and (ii) unless otherwise permitted under this Section 10.7, no Bank may transfer, pledge, assign, sell participations in or otherwise convey or encumber its Commitments or Loans or interests in Letters of Credit. Borrower shall not directly or indirectly purchase or otherwise retire any Obligations owed to any Bank or the Issuing Bank nor will any Bank or the Issuing Bank accept any offer to do so, unless each Bank or the Issuing Bank (or both, as applicable) shall have received substantially the same offer with respect to the same pro rata share of the Obligations owed to it. If Borrower, directly or indirectly, at any time purchases some but less than all of the Obligations owed to the Agent, the Issuing Bank and the Banks, then notwithstanding any provision herein to the contrary such purchaser or purchasers shall not be entitled to any rights of the Agent, the Issuing Bank or the Banks under the Loan Documents (including voting rights or the right to participate in or determine any modification (as that term is defined in Section 10.6)), unless and until Borrower has purchased all of the Obligations.
(b) The Neither this Agreement nor any other Loan Document, nor any benefits hereunder or thereunder, shall inure to or for the benefit of any Person that is not a signatory party hereto, other than any of such Persons that are expressly named or designated as indemnitees, releasees or exculpatees herein. All conditions to make Loans hereunder or to issue Letters of Credit hereunder, and all covenants, warranties, representations, and other terms and provisions of, and applicable to, Borrower and Agent acknowledge that its Subsidiaries in each Loan Document are imposed solely and exclusively for the benefit of the Lenders Agent, the Issuing Bank and each Bank, and their respective successors and assigns. No other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that no Loans will be made or Letters of Credit will be issued in the absence of strict compliance with any or all of such conditions; and no other Person shall, under any circumstances, be deemed to be a beneficiary of such conditions, covenants, warranties, representations and other terms and provisions. Any of such conditions, and the breach of, or noncompliance with, any such covenants, warranties, representations and other terms and provisions may be freely waived in whole or in part by the Agent, the Issuing Bank and the Banks (subject to applicable provisions hereof) at any time if in its or their (as applicable) sole discretion it or they (as applicable) deem it advisable to do so. No such conditions, covenants, warranties, representations or other terms or provisions are intended to release, or authorize or permit a breach by, Borrower or any of its Subsidiaries of any of their respective obligations and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents requirements to any Eligible Assigneethird Person, 77 or any noncompliance therewith, or to evidence the contractual interference therewith by the Agent, the identity of which institution is approved by Borrower and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Issuing Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of Borrower. The Borrower authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) and Agent, any and all financial information in such Lender’s possession concerning the Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 hereofBanks.
(c) Each assignment by Subject to the provisions of this Section 10.7, any Bank may in the ordinary course of its business, with notice to but without any consent of Borrower with respect thereto, and in accordance with applicable Law, at any time sell to one or more Persons who are Affiliates of such Bank (each a Lender of "Participant") a participating interests in all or any portion part of its rights and obligations hereunder and under any Loans, or in the other Loan DocumentsCommitments, which assignments shall be on of such Bank. In the event of any such sale by a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or Bank to a Federal Reserve Bank) and shall be subject to the terms and conditions hereofParticipant, and to the following restrictions:
(i) each assignment such Bank shall be in remain a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) "Bank" for all purposes under this Agreement, and the Term Loan; providedParticipant shall not constitute a "Bank" hereunder, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment such Bank's obligations under this Agreement shall be effective unless remain unchanged, (iii) such Bank shall remain solely responsible for the performance of its obligations under this Agreement, (iv) such Bank shall remain the holder of any such Note and the obligor to fund its respective Commitments for all purposes under this Agreement, and (v) Borrower, the Issuing Bank, the Agent has received from and the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent other Banks shall be entitled to continue to deal solely and directly with the assigning Lender such Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that such Bank's rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant Participants shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the Loan Documents, other than rights of setoff (and attendant obligations) expressly set forth herein. No Bank shall sell any participating interest under which the Participant shall have, and no Participant shall have, any rights to vote on any modification (as such term is defined in Section 10.6) of this Agreement or any other Loan Document, and any agreement between any Bank and any Participant granting any Participant any voting rights shall be void ab initio. Except in the case of the sale of a participating interest to a Bank, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or encumber its portion of, the Commitments, the Loans, or the Letters of Credit.
(d) Subject to the provisions of this Section 10.7(d), any Bank may, in the ordinary course of its business and in accordance with applicable Law, assign to one or more Qualified Banks (each a "Purchaser") a proportional part (not less than $5,000,000 of the Bank's Commitment, unless such Bank is reducing its Commitment to zero) of its rights and obligations under the Loan Documents, and such Purchaser shall (i) assume all actions hereunder such rights and obligations, pursuant to an Assignment Agreement substantially in the form of Exhibit E hereto (an "Assignment Agreement") and other necessary and related documents, all in form, scope and substance satisfactory to the Agent, executed by such Purchaser, such transferor Bank, the Agent and the Issuing Bank, and (ii) pay to the Agent, for its account, a non-refundable processing fee in the amount of $3,500. Upon the effectiveness of such Assignment Agreement, such Purchaser shall for all purposes be conducted a Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement to the same extent as if no such participation had been granted.
(e) The Agent shall maintain at its principal office it were an original party hereto with a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries Commitment as set forth in the Register shall be conclusive evidence, absent manifest errorAssignment Agreement, and the transferor Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by Borrower, the Banks or the Agent shall be required. Upon the consummation of any transfer to a Purchaser pursuant to this Section 10.7(d), the transferor Bank, the Agent, the Issuing Bank and the Lenders may treat Borrower shall make appropriate arrangements, at Borrower's cost and expense, so that, if required, new Notes are issued to such Purchaser. Any sale pursuant to this Section 10.7(d) shall be of an equal pro rata portion of each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.transferor Bank's Commitment,
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by BorrowerBorrowers, of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the Lenders.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (but only on a pro rata basis onlybasis) and under the other Loan Documents to any Eligible Assignee, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning a Lender, any other Lender or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of any Borrower and Subsidiaries without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of BorrowerBorrowers. The Borrower authorizes Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and Agent, any and all financial information in such Lender’s possession concerning the Borrower Borrowers which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.13 hereof.
(cd) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, basis and shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.if
Appears in 1 contract
Sources: Revolving Credit Agreement (Capital Automotive Reit)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company, the Agent and the Lenders Banks, and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, and no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower and Agent acknowledge that each Each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations (but not assignments, except as expressly permitted hereunder) in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, the identity of savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, which institution is approved in advance in writing by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an a Default or Event of Default, Default and (ii) the approval of Borrower Company and Agent shall not be required for any such salethe grant of a participation by a Bank to its Affiliate, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender Bank or to any Federal Reserve Bank; and provided further that the aggregate assignments and participation interests sold by a Bank and (iii) no assignment shall be made or participation granted other than to an entity which is a competitor Affiliate or pursuant to subparagraph (ii) of Borrower this Section 14.9(c)) do not exceed fifty percent (50%) of its original interest under this Agreement and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of Borrowerother Loan Documents. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower Company and Agent (if such approval is required) and Agent), any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.14, hereof.. A Bank shall not be permitted to assign or otherwise transfer (except by participation according to the terms hereof) its rights and obligations hereunder, except, (x) to an Affiliate of an assigning Bank or to any Bank or (y) with the prior written consent of the Company and the Agent which shall not be unreasonably withheld, to any other financial institution; provided that any such assignment shall not be in an amount less than $5,000,000;
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, Documents shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit "I" (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall cover all of the Notes issued by Company and its Subsidiaries hereunder, and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000);
(iii) no assignment shall violate any "blue sky" or other securities law of any jurisdiction or shall require the Company or any other Person to file a registration statement or similar application with the United States Securities and Exchange Commission (or similar state regulatory body) or such lesser amount as to qualify under the Agent shall agree and (y) the entire remaining amount "blue sky" or other securities laws of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000jurisdiction; and
(iiiv) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of Three Thousand Dollars ($3,500 3,000) for each such assignment. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreementthe Loan Agreements. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. In the event of an assignment by any Bank of any portion of its rights and obligations hereunder and under the other Loan Documents, the assigning Bank shall pay to its assignee a pro rata portion of all prepaid Letter of Credit Fees received by the assigning Bank with respect to outstanding Letters of Credit, based on the unexpired portion of the period for which such Letter of Credit Fees have been prepaid. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required)Agreement, Borrower Company shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, a new Note(s) Note payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender hereunderBank hereunder shall be executed and delivered by the Company and such amendments to the Collateral Documents as Agent may require in order to evidence such assignment. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may shall contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and each of the assigning Lender and the assignee Lender Banks a revised Schedule 1.2 attached hereto Exhibit G to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d14.9(e) with respect to rights of setoff and the benefits of Section 11 Article 12 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender)participant, except for those matters covered by Section 13.11(a14.12(a) through (fe) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder), and shall otherwise be in form satisfactory to Agent. Borrower Company agrees that each participant shall be deemed to have the right of setoff under Section 9.6 11.4 hereof (and under the comparable terms of the other Loan Agreements), in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender Bank under this Agreement Agreement, shall be subject to the pro rata recovery provisions of Section 11.3 hereof (and under the comparable terms of the other Loan Agreements), and that each participant shall be entitled to the benefits of Section 11 hereofArticle 12 hereof (and under the comparable terms of the other Loan Agreements). The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender Bank and the Person purchasing such participation, and none of the BorrowerCompany, the Agent and the other Lenders Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender Bank of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes Loan Documents or the other Loan DocumentsNotes, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Jpe Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only; for avoidance of doubt, each Bank hereunder must maintain at all times an equal Percentage of each of the Revolving Credit, Term Loan A and Term Loan B and any non-pro rata assignments will be void) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of BorrowerCompany. The Borrower Company authorizes each Lender Bank to disclose to any bona fide prospective assignee or participant, participant once approved by Borrower (if such approval is required) Company and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term LoanLoans; provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.if
Appears in 1 contract
Sources: Credit Agreement (Olympic Steel Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of BorrowerCompany. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Company and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 13.12 hereof. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower Company has consented to such assignment (if their consent is required), Borrower Company shall, to the extent applicable, and if requested by the assignee Bank, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a13.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by the Company hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 13.8(e) with respect to rights of setoff under Section 9.6 and the benefit of Section 11 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerCompany, the Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower any of the Company or any Lender Bank upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower the Company of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of BorrowerCompany. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Company and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 12.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 12.12 hereof. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower Company has consented to such assignment (if their consent is required), Borrower Company shall, to the extent applicable, and if requested by the assignee Bank, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a12.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by the Company hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 12.8(e) with respect to rights of setoff under Section 8.6 and the benefit of Section 10 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerCompany, the Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower any of the Company or any Lender Bank upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower the Company of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Borrowers of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of all of the Lenders.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s 's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assignee, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, and (ii) the approval of Borrower Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of BorrowerBank. The Borrower authorizes Borrowers authorize each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and Agent, any and all financial information in such Lender’s 's possession concerning the Borrower Borrowers which has been delivered to such Lender pursuant to this Agreement; , provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 hereof.
(cd) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basisbasis only (but only if additional loan facilities are added to this Agreement), shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit H (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s 's Affiliates or to a Federal Reserve BankLender) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s 's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s 's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than Five Million Dollars ($5,000,000); and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower Borrowers and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Borrowers' receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has Borrowers have consented to such assignment (if their consent is required), Borrower Borrowers shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower Borrowers acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Borrowers and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(de) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d13.8(e) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower Borrowers relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and BorrowerBorrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s 's rights and duties hereunder). Borrower agrees Borrowers agree that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement Agreement, shall be subject to the pro rata recovery provisions of Section 11.3 hereof and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the BorrowerBorrowers, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerBorrowers, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower any of the Borrowers or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower Holdings of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Plastipak Holdings Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Administrative Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower Company and Administrative Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an Event of DefaultDefault or in connection with the sale of a participation, (ii) the approval of Borrower Company and Administrative Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of BorrowerCompany. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Company and Administrative Agent, as applicable, any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Administrative Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Administrative Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Administrative Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Administrative Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 13.12 hereof. In connection with any assignment, Borrower Company and Administrative Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Administrative Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Administrative Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Administrative Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Administrative Agent that Administrative Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower Company has consented to such assignment (if their consent is required), Borrower Company shall, to the extent applicable, and if requested by the assignee Bank, execute and deliver to the Administrative Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. Administrative Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Administrative Agent shall prepare and distribute to Borrower Company and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Administrative Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a13.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent Agents and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by the Company hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 13.8(e) (if any), the benefit of Section 9.6 with respect to rights of setoff to the extent provided therein and the benefits of Section 11 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the Issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Administrative Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerCompany, the Administrative Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Company or any Lender Bank upon reasonable notice to the Administrative Agent and a copy of such information shall be provided to any such party on their prior written request. The Administrative Agent shall give prompt written notice to Borrower the Company of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower the Company and the Lenders and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, the Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the Lenders.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower and AgentAgent and, in the case of an assignment, the Company, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower the Company shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower the Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank Lender and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower the Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of Borrowerthe Company. The Borrower Company authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower the Company (if such approval is requiredwith respect to an assignment) and Agent, any and all financial information in such Lender’s possession concerning the Borrower Company which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 11.11 hereof.
(cd) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit D (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve BankLender) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower assignment and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of such assignment duly executed is accompanied by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender relevant tax forms required under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignmentSection 11.12 hereof.
(de) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a11.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrowerthe Company, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing granted by any Lender and the Person purchasing such participation, and none of the Borrowerhereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all actions amounts payable by the Company hereunder shall be conducted determined as if such Lender had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 11.8(e) with respect to rights of setoff under Section 7.6 and the benefit of Section 9 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Lender would have been entitled to receive in respect of the amount of the participation transferred by such issuing Lender to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerCompany, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower any of the Company or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower the Company of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.participants
Appears in 1 contract
Sources: Credit Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by BorrowerBorrowers, of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis onlyor a non-rata basis) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, loan or debt fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Borrowers and their Subsidiaries without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of BorrowerBorrowers. The Borrower authorizes Borrowers authorize each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Borrowers which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.12 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata or (but only with the consent of the Agent) a non pro-rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Ten Million Dollars ($5,000,00010,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of CreditCredit and Brazilian Advances) and the Term LoanLoans; provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of CreditCredit and Brazilian Advances) and the Term Loan Loans be less than $5,000,00010,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Autocam Corp/Mi)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such LenderBank’s rights and obligations hereunder (on a pro rata basis only) only based on the assigning Bank’s Percentage of each of the Revolving Credit and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Company and their Subsidiaries without the consent of the BorrowerCompany, which consent may be withheld in the sole discretion of BorrowerCompany. The Borrower Company authorizes each Lender Bank to disclose to any bona fide prospective assignee or participant, participant once approved by Borrower (if such approval is required) Company and Agent, any and all financial information in such LenderBank’s possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such LenderBank’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 13.12 hereof. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following BorrowerCompany’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower Company has consented to such assignment (if their consent is required), Borrower Company shall, to the extent applicable, and if requested by the assignee Bank, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness Obligations retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness Obligations evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a13.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such LenderBank’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant’s rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by the Company hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 13.8(e) with respect to rights of setoff under Section 9.6 and the benefit of Section 11 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerCompany, the Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Company or any Lender Bank upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower the Company of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Olympic Steel Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower the Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, any Borrower of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and the Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such LenderBank’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution is approved by Borrower the Borrowers and the Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower the Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower and Agent the Borrowers shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries any Party without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of Borrowerthe Borrowers. The Each Borrower authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) the Borrowers and the Agent, any and all financial information in such LenderBank’s possession concerning the Borrower Parties which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.11 hereof. Each commercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or similar institution which becomes a Bank pursuant to this Section 14.8 shall be deemed to have joined into the AV Subordination Agreement.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, Documents shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such LenderBank’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless the Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 14.12 hereof. In connection with any assignment, Borrower the Borrowers and the Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower the Borrowers and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s the Borrowers’ receipt of notice from the Agent that the Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the each Borrower has consented to such assignment (if their its consent is required), Borrower the Borrowers shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. The Agent, the Lenders Banks, and the Borrower Borrowers acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, the Agent shall prepare and distribute to Borrower the Borrowers and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign further assign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Borrowers relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause the Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a14.10(a) through (fd) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and Borrowerthe Borrowers, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such LenderBank’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant’s rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by the Borrowers hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 14.8(e) with respect to rights of setoff under Section 9.6 and the benefit of Section 11 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the BorrowerBorrowers, the Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender Bank upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower the Borrowers of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Staktek Holdings Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company, the Agent and the Lenders Banks, and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, and no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower and Agent acknowledge that each Each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations (but not assignments, except as expressly permitted hereunder) in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, the identity of savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, which institution is approved in advance in writing by Borrower Agent and AgentCompany (provided, however, the consent of Company shall not be required following the occurrence and during the continuance of an Event of Default and the consent of Company shall not unreasonably be withheld), such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an a Default or Event of Default, Default and (ii) the approval of Borrower Company and Agent shall not be required for any such salethe grant of a participation by a Bank to its Affiliate, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender Bank or to any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of BorrowerBank. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower Company and Agent (if such approval is required) and Agent), any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 15.13, hereof.. A Bank shall not be permitted to assign or otherwise transfer, sell or dispose of (except by participation according to the terms hereof) its rights and obligations hereunder, except, (x) to an Affiliate of an assigning Bank or to any Bank or (y) with the prior written consent of the Company and the Agent which shall not be unreasonably withheld, to any other financial institution; provided that any such assignment shall not be in an amount less than $5,000,000;
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, Documents shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit "I" (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall cover all of the Notes issued by Company hereunder, and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000);
(iii) no assignment shall violate any "blue sky" or other securities law of any jurisdiction or shall require the Company or any other Person to file a registration statement or similar application with the United States Securities and Exchange Commission (or similar state regulatory body) or such lesser amount as to qualify under the Agent shall agree and (y) the entire remaining amount "blue sky" or other securities laws of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000jurisdiction; and
(iiiv) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 3,000 for each such assignment. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreementthe Loan Agreements. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required)Agreement, Borrower Company shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, a new Note(s) Note payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender hereunderBank hereunder shall be executed and delivered by the Company. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may shall contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and each of the assigning Lender and the assignee Lender Banks a revised Schedule 1.2 attached hereto Exhibit "C" to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d15.8(e) with respect to rights of setoff and the benefits of Section Article 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender)participant, except for those matters covered by Section 13.11(a15.11(b), (c) through and (fe) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunderhereunder and provided further that no participant shall have any approval rights with respect to any release by the Banks of any mortgage interest in the Store Site located in Saginaw, Michigan), and shall otherwise be in form satisfactory to Agent. Borrower Company agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof 12.4 hereof, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender Bank under this Agreement Agreement, shall be subject to the pro rata recovery provisions of Section 12.3 hereof, and that each participant shall be entitled to the benefits of Section Article 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender Bank and the Person purchasing such participation, and none of the BorrowerCompany, the Agent and the other Lenders Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender Bank of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes Loan Documents or the other Loan DocumentsNotes, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. This (a) The provisions of this Agreement shall be binding upon and shall inure to the benefit of Borrower and the Lenders parties hereto and their respective successors and assigns.
(a) The foregoing shall assigns permitted hereby, except that the Borrower may not authorize assign or otherwise transfer any assignment by Borrower, of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) obligations hereunder without the prior written approval consent of each Lender (and any attempted assignment or transfer by the LendersBorrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Indemnified Persons) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) The Borrower Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and Agent acknowledge obligations under this Agreement (including all or a portion of its Commitment and the Loans, including for purposes of this subsection (b), participations in Standby Letters of Credit (including reimbursement obligations arising under Drawings) and in Swing Line Loans); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Agent, shall not be less than $5 million unless each of the Lenders may at any time Agent and, so long as no Event of Default has occurred and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneeis continuing, the identity of which institution is approved by Borrower and Agent, otherwise consents (each such approval consent not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower shall not be required upon the occurrence and during the continuance of an Event of Default), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the approval of Borrower assigning Lender's rights and Agent obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not be required for any such saleapply to rights in respect of outstanding Swing Line Loans, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (iii) no the parties to each assignment shall be made or participation granted execute and deliver to the Agent an entity which is a competitor of Borrower Assignment and Subsidiaries without the consent of the Borrower, which consent may be withheld Acceptance substantially in the sole discretion form of BorrowerExhibit H hereto, together with a processing and recordation fee of $3,500. The Borrower authorizes each Lender Subject to disclose to any prospective assignee or participant, once approved acceptance and recording thereof by Borrower (if such approval is required) and Agent, any and all financial information in such Lender’s possession concerning the Borrower which has been delivered to such Lender Agent pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 hereof.
subsection (c) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documentsthis Section, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the effective date on which the Agent shall notify Borrower specified in each Assignment and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been givenAcceptance, the assignee Eligible Assignee thereunder shall be deemed to be a party hereto and, to this Agreement. To the extent that rights of the interest assigned by such Assignment and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement)Acceptance, such assignee shall have the rights and obligations of a Lender under this Agreement Agreement, and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderLender thereunder shall, to the extent that rights and obligations hereunder shall have been of the interest assigned by it as provided in such notice of assignment (Assignment and Assignment Agreement)Acceptance, but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt Acceptance covering all of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender's rights and obligations under this Agreement, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect cease to rights of setoff and the benefits of Section 11 hereof, be a participant party hereto but shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms Sections 9.2 and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted9.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement (Caci International Inc /De/)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by BorrowerBorrowers, of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis onlyor a non-rata basis) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, loan or debt fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower Borrowers and their Subsidiaries without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of BorrowerBorrowers. The Borrower authorizes Borrowers authorize each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Borrowers which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.12 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata or (but only with the consent of the Agent) a non pro-rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Ten Million Dollars ($5,000,00010,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term LoanLoans; provided, however, provided however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s Bank's aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan Loans be less than $5,000,00010,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Autocam Corp/Mi)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company, the Agent and the Lenders Banks, and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Company of its rights or duties hereunder, and, except as otherwise provided herein, and no such assignment shall be made (or effective) without the prior written 90 approval of the LendersBanks.
(bc) The Borrower and Agent acknowledge that each Each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents but only on a pro rata basis to any Eligible Assigneecommercial bank, the identity of savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, which institution is approved in advance in writing by Borrower Agent and AgentCompany, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an a Default or Event of Default, Default and (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation by a Bank to the Affiliate of an assigning Lenderits Affiliate, to any other Lender Bank or to any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of BorrowerBank. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower Company and Agent (if such approval is required) and Agent), any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.13, hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, basis and shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit "L" (with appropriate insertions acceptable to Agent) (), provided however that such Lender Bank need not deliver an any Assignment Agreement in connection with assignments to such Lender’s Affiliates or Assignments to a Federal Reserve Bank) Bank and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall cover all of the Notes issued by Company hereunder, and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) (or such lesser amount as the Agent shall agree and (y) if less, the entire remaining amount of such assigning Lender’s aggregate Bank's interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; andunder this Agreement);
(iiiii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreementthe Loan Agreements. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan DocumentsAgreement. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required)Agreement, Borrower Company shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, a new Note(s) Note payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender hereunderBank hereunder shall be executed and delivered by the Company. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may shall contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and each of the assigning Lender and the assignee Lender Banks a revised Schedule 1.2 attached hereto Exhibit I to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d14.8(e) with respect to rights of setoff and the benefits of Section 11 Article 12 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender)participant, except for those matters covered by Section 13.11(a14.11(a) through (fd) and (g) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder), and shall otherwise be in form satisfactory to Agent. Borrower Company agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof 11.4 hereof, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender Bank under this Agreement Agreement, shall be subject to the pro rata recovery provisions of Section 11.3 hereof, and that each participant shall be entitled to the benefits of Section 11 Article 12 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender Bank and the Person purchasing such participation, and none of the BorrowerCompany, the Agent and the other Lenders Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender Bank of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes Loan Documents or the other Loan DocumentsNotes, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants participant permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Mce Companies Inc)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower each of the Borrowers, the Agent and the Lenders Lenders, and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, any of the Borrowers of its rights or duties hereunder, and, except as otherwise provided herein, and no such assignment shall be made (or be effective) without the prior written approval of the Majority Lenders.
(bc) The Borrower and Agent acknowledge that each Each of the Lenders may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations (but not assignments, except as expressly permitted hereunder) in such Lender’s 's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an unmatured default or Event of Default, Default and (ii) the approval of Borrower Borrowers and Agent shall not be required for the grant of a participation by a Lender to its affiliate or to any such sale, transfer, assignment or participation to the Affiliate of an assigning other Lender, any other Lender or to any Federal Reserve Bank Bank; and provided further that the aggregate participation interests sold by a Lender (iiiother than pursuant to subparagraph (ii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower this Subsection 15.1(c)) do not exceed forty-nine percent (49%) of its original interest under this Agreement and Subsidiaries without the consent other Loan Documents. Each of the Borrower, which consent may be withheld in the sole discretion of Borrower. The Borrower Borrowers authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and the Agent, any and all financial information in such Lender’s 's possession concerning the Borrower Borrowers which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with in form acceptable to the Borrowers and the Agent. A Lender shall not be permitted to assign or otherwise transfer (except by participation according to the terms of Section 13.12 hereof.
(c) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under hereunder, except to the other Loan Documentsaffiliate of an assigning Lender, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a any Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreementparticipation agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(dSubsection 15.1(d) with respect to rights of setoff and the benefits of Section 11 Article 8 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower Borrowers relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender)participant, except for those matters covered by Section 13.11(a) through (f) 17.5 hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and BorrowerBorrowers, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s 's rights and duties hereunder), and shall otherwise be in form satisfactory to Agent. Borrower Each of the Borrowers agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement Agreement, shall be subject to the pro-rata recovery provisions of this Agreement, and that each participant shall be entitled to the benefits of Section 11 Article 8 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the BorrowerBorrowers, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of At any time after the Closing Date each Assignment Agreement delivered to it and a register (Lender may, with the “Register”) for the recordation prior consent of the names Agent, assign all or a portion of its rights and addresses of obligations under the LendersLoan Documents by executing (together with the assignee Lender and the Agent) an Assignment and Acceptance and such other documents as shall be reasonably required by Agent or its counsel in connection with such assignment. Upon such execution, from and after the effective date specified in such Assignment and Acceptance, the Percentages assignee thereunder shall become a party to this Agreement and have the rights and obligations of such Lenders and the principal amount of each type of Advance owing to each such a Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest errorhereunder, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.assigning
Appears in 1 contract
Sources: Loan Agreement (Railamerica Inc /De)
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Company and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by BorrowerCompany, of its rights or duties hereunder, and, except as otherwise provided herein, and no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Company and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, loan or debt fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Company shall not be required upon the occurrence and during the continuance of an a Default or Event of Default, and (ii) the approval of Borrower Company and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of BorrowerBank. The Borrower Company authorizes each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Company and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Company which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.12 hereof.. 92 EXHIBIT 10.1
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, Documents shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall cover all of the Notes issued by Company hereunder to the assigning Bank (and not any particular note or notes), and shall be for a fixed and not varying percentage thereof, with the same percentage applicable to each such Note;
(ii) each assignment shall be in a minimum amount of the lesser of (xX) Five Ten Million Dollars ($5,000,00010,000,000) or such lesser amount as the Agent shall agree and (yY) the entire remaining amount of assigning Lender’s aggregate Bank's interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and);
(iiiii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower Company and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower Company and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s Company's receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required)Agreement, Borrower Company shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender hereunderBank hereunder shall be executed and delivered by the Company. Agent, the Lenders Banks and the Borrower Company acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Company and each of the assigning Lender and the assignee Lender Banks a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d14.8(e) with respect to rights of setoff and the benefits of Section 11 12 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Company relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuaranties, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender)participant, except for those matters covered by Section 13.11(a14.11 (a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerCompany, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such Lender’s Bank's rights and duties hereunder). Borrower Company agrees that each participant shall be deemed to have the right of setoff under Section 9.6 10.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender Bank under this Agreement Agreement, shall be subject to the pro rata recovery provisions of Section 11.3 hereof and shall be entitled to the benefits of Section 11 12 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender Bank and the Person purchasing such participation, and none of the BorrowerCompany, the Agent and the other Lenders Banks shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender Bank of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, Borrowers of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such LenderBank’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which such institution is approved by Borrower Borrowers and Agent, which such approval shall not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower and Agent Borrowers shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, or any other Lender or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Borrowers or their Subsidiaries without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of BorrowerBorrowers. The Borrower authorizes Borrowers authorize each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower Borrowers (if such approval is required) and Agent, any and all financial information in such LenderBank’s possession concerning the Borrower which Borrowers that has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 12.12 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan); provided, however, however that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning LenderBank’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning LenderBank) an assignment fee of $3,500 for each such assignmentassignment and such assignment is accompanied by the relevant tax forms required under Section 12.12 hereof. In connection with any assignment, Borrower Borrowers and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender Bank and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender Bank and each assignee; and (y) the assigning Lender Bank shall have delivered to the Agent the original of each Note held by the assigning Lender Bank under this Agreement. From and after the date on which the Agent shall notify Borrower Borrowers and the assigning Lender Bank that the foregoing conditions shall have been satisfied and all consents required (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender Bank under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning LenderBank, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within Assuming Borrowers have consented to such assignment (if its consent is required), within five (5) Business Days following Borrower’s Borrowers’ receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required)Agreement, Borrower Borrowers shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning LenderBank, to the extent applicable, new Note(s) payable to the order of the assigning Lender Bank in an amount equal to the amount retained by such Lender Bank hereunder. Agent, the Lenders Banks, and the Borrower Borrowers acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower Borrowers and the assigning Lender Bank and the assignee Lender Bank a revised Schedule 1.2 attached hereto to this Agreement setting forth the applicable new Percentages of the Lenders Banks (including the assignee LenderBank), taking into account such assignment.
(de) Each Lender Bank agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender Bank shall remain the holder of its Notes hereunderhereunder (if such Notes are issued), notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iviii) such Lender Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower Borrowers relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any GuarantorsGuarantor, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such LenderBank), except for those matters covered by Section 13.11(a12.10(a) through (fe) and (h) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such LenderBank, and BorrowerBorrowers, Agent and the other Lenders Banks may continue to deal directly with such Lender Bank in connection with such LenderBank’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have Notwithstanding the right of setoff under Section 9.6 hereof foregoing, however, in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions case of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrowergranted by any Bank hereunder, the Agent and the other Lenders participant shall not have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations rights under this Agreement or any of the other Loan Documents, Documents (the participant’s rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all actions amounts payable by Borrowers hereunder shall be conducted determined as if such Bank had not sold such participation, provided, however, that such participant shall be entitled to the benefits of this Section 12.8(e) with respect to rights of setoff under Section 8.6 and the benefit of Section 10 hereof, and provided further, however, that no participant shall be entitled to receive any greater amount pursuant to such Sections than the issuing Bank would have been entitled to receive in respect of the amount of the participation transferred by such issuing Bank to such participant had no such participation had been grantedtransfer occurred.
(ef) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the LendersBanks, the Percentages of such Lenders Banks and the principal amount of each type of Advance owing to each such Lender Bank from time to time. The entries in the Register shall be conclusive evidence, so long as they reflect a reasonable basis for the calculation of the amounts set forth therein and absent manifest error, and the BorrowerBorrowers, the Agent, and the Lenders Banks may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower Borrowers or any Lender Bank upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower Borrowers of the making of any entry in the Register or any change in such entry.
(fg) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by BorrowerBorrowers, of its their rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, loan or debt fund, commercial finance company or other similar financial institution, the identity of which institution is approved by Borrower Borrowers and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Borrowers shall not be required upon the occurrence and during the continuance of an a Default or Event of Default, and (ii) the approval of Borrower Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrower, which consent may be withheld in the sole discretion of BorrowerBank. The Borrower authorizes Borrowers authorize each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) Borrowers and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Borrowers which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 14.12 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, Documents shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Commercial Vehicle Group, Inc.)
Successors and Assigns Participations Assignments. This Agreement (a) The Loan Documents shall be binding upon upon, and shall inure to the benefit of Borrower and the Lenders parties thereto and their respective successors and assigns.
(a) The foregoing shall , except that the Borrower may not authorize assign or transfer any assignment by Borrower, of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) obligations under any Loan Document without the prior written approval consent of the LendersBank.
(b) The Neither this Agreement nor any other Loan Document, nor any benefits hereunder or thereunder, shall inure to or for the benefit of any Person that is not a signatory party hereto, other than any of such Persons that are expressly named or designated as indemnitees, releasees or exculpatees herein. All conditions to make Loans and issue Letters of Credit hereunder and all covenants, warranties, representations, and other terms and provisions of, and applicable to, the Borrower in each Loan Document are imposed solely and Agent acknowledge that each exclusively for the benefit of the Lenders Bank, and its respective successors and assigns. No other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that no Loans will be made or Letters of Credit issued in the absence of strict compliance with any or all of such conditions; and no other Person shall, under any circumstances, be deemed to be a beneficiary of such conditions, covenants, warranties, representations and other terms and provisions. Any of such conditions, and the breach of, or noncompliance with, any such covenants, warranties, representations and other terms and provisions may be freely waived in whole or in part by the Bank (subject to applicable provisions hereof) at any time if in its or their (as applicable) sole discretion it or they (as applicable) deem it advisable to do so. No such conditions, covenants, warranties, representations or other terms or provisions are intended to release, or authorize or permit a breach by, the Borrower of any of its obligations and from time requirements to timeany third Person, subject or any noncompliance therewith, or to evidence the contractual interference therewith by the Bank.
(c) Subject to the terms and conditions hereof, assign or grant participations in such Lender’s rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneeprovisions of this Section 8.7, the identity Bank may in the ordinary course of which institution is approved its business, without notice to or consent from the Borrower, and in accordance with applicable Law, at any time sell to one or more Qualified Banks (each a "Participant") participating interests in all or any part of any Loans, or in the Commitments, of such Bank. In the event of any such sale by Borrower and Agentthe Bank to a Participant, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower Bank shall remain the "Bank" for all purposes under this Agreement, and the Participant shall not be required upon constitute the occurrence and during the continuance of an Event of Default"Bank" hereunder, (ii) the approval of Borrower and Agent Bank's obligations under this Agreement shall not be required for any such saleremain unchanged, transfer, assignment or participation to the Affiliate of an assigning Lender, any other Lender or any Federal Reserve Bank and (iii) no assignment the Bank shall be made or participation granted remain solely responsible for the performance of its obligations under this Agreement, (iv) the Bank shall remain the holder of any Note and the obligor to an entity which is a competitor of Borrower and Subsidiaries without the consent of the Borrowerfund its respective Commitments for all purposes under this Agreement, which consent may be withheld in the sole discretion of Borrower. The Borrower authorizes each Lender to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is requiredand(v) and Agent, any and all financial information in such Lender’s possession concerning the Borrower which has been delivered to such Lender pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 hereof.
(c) Each assignment by a Lender of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement (with appropriate insertions acceptable to Agent) (provided however that such Lender need not deliver an Assignment Agreement in connection with assignments to such Lender’s Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender Bank in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that Bank's rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant Participants shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, other than rights of set off(and attendant obligations) expressly set forth herein. The Bank shall not sell any participating interest under which the Participant shall have, and no Participant shall have, any rights to vote on any modification (as such term is defined in Section 8.6) of this Agreement or any other Loan Document, and any agreement between the Bank and any Participant granting any Participant any voting rights shall be void AB INITIO. Except in the case of the sale of a participating interest to a bank, the relevant participation agreement shall not permit the Participant to transfer, pledge, assign, sell participations in, or encumber its portion of, the Commitments or the Loans.
(d) Contemporaneously with the execution of this Agreement by both parties hereto, the Bank has, with the knowledge and consent of Borrower, transferred and assigned to First Security Bank of New Mexico, N.A., a national banking association (the "Purchaser"), 50% of the Bank's Commitment and 50% of all actions other rights and obligations of the Bank under the Loan Documents; and Purchaser has assumed 50% of such Commitment, rights and obligations pursuant to and as more specifically provided in the assignment and assumption agreement in the form of Exhibit H attached hereto and made a part hereof for all purposes. Purchaser shall for all purposes be a bank party to this Agreement and have 50% of the rights and obligations of the Bank under this Agreement to the same extent as if Purchaser were an original party hereto with 50% of the Commitment asset forth in the assignment and assumption agreement, and Bank shall be released from a corresponding 50% of its Commitment, rights and obligations under this Agreement. No further consent or action by Borrower or the Bank shall be required. However, pursuant to the terms of this Agreement and the assignment and assumption agreement, all payment, reporting and notification obligations of Borrower hereunder shall be conducted as if no satisfied by Borrower delivering all such participation had been grantedpayments, reports and notices to transferor Bank in accordance with the terms of this Agreement. No such payments, reports or notices need be delivered by Borrower to Purchaser, but shall be delivered to transferor Bank by Purchaser pursuant to the terms of the assignment and assumption agreement. All notices to be delivered by Bank to Borrower hereunder shall also be delivered by transferor Bank to Borrower pursuant to the terms of this Agreement and the assignment and assumption agreement.
(e) The Agent shall maintain at its principal office Borrower authorizes the Bank to disclose to any Participant and the Purchaser (each a copy of each Assignment Agreement "Transferee") and any prospective Participant any and all financial information in the Bank's possession concerning the Borrower which has been delivered to the Bank by or on behalf of it and a register (pursuant to this Agreement or which has been delivered to the “Register”) for Bank by them in connection with the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing Bank's credit evaluation prior to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of entering into this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in No Transferee shall be entitled to receive any greater payment under this Agreement than the transferor Bank would have been entitled to receive with respect to the rights assigned.
(g) Notwithstanding any other provisions of this Section 8.7, no transfer or assignment of the interests or obligations of the Bank hereunder or any grant of participations therein shall be permitted if such transfer, assignment or grant would require any Borrower to file a registration statement with the Securities and Exchange Commission or to qualify the Loans under the"Blue Sky" laws of any state.
(h) Each person that becomes a Bank pursuant to an assignment permitted by Section 8.7(d) will, upon its becoming party to this Agreement, represent that it is a Qualified Bank, and that it will make or acquire Loans only for its own account in the Notes or ordinary course of its business; provided, however, that subject to the other Loan Documentspreceding provisions of this Section 8.7, expressed or implied, is intended to or shall confer on the disposition of any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy promissory notes or other claim under this Agreement, the Notes evidences of or the other Loan Documentsinterests in Obligations held by it shall at all times be within its exclusive control.
Appears in 1 contract
Successors and Assigns Participations Assignments. (a) This Agreement shall be binding upon and shall inure to the benefit of Borrower the Borrowers and the Lenders Banks and their respective successors and assigns.
(ab) The foregoing shall not authorize any assignment by Borrower, any Borrower of its rights or duties hereunder, and, except as otherwise provided herein, no such assignment shall be made (or effective) without the prior written approval of the LendersBanks.
(bc) The Borrower Borrowers and Agent acknowledge that each of the Lenders Banks may at any time and from time to time, subject to the terms and conditions hereof, assign or grant participations in such Lender’s Bank's rights and obligations hereunder (on a pro rata basis only) and under the other Loan Documents to any Eligible Assigneecommercial bank, savings and loan association, insurance company, pension fund, mutual fund, commercial finance company or other similar institution, the identity of which institution institution, in the case of assignments, is approved by Borrower Company and Agent, such approval not to be unreasonably withheld or delayed; provided, however, that (i) the approval of Borrower the Borrowers shall not be required upon the occurrence and during the continuance of an Event of Default, (ii) the approval of Borrower the Borrowers and Agent shall not be required for any such sale, transfer, assignment or participation to the Affiliate of an assigning LenderBank, any other Lender Bank or any Federal Reserve Bank and (iii) no assignment shall be made or participation granted to an entity which is a competitor of Borrower the Borrowers and their Subsidiaries without the consent of the BorrowerBorrowers, which consent may be withheld in the sole discretion of Borrowerthe Borrowers. The Borrower authorizes Borrowers authorize each Lender Bank to disclose to any prospective assignee or participant, once approved by Borrower (if such approval is required) the Borrowers and Agent, any and all financial information in such Lender’s Bank's possession concerning the Borrower Borrowers which has been delivered to such Lender Bank pursuant to this Agreement; provided that each such prospective participant shall execute a confidentiality agreement consistent with the terms of Section 13.12 13.11 hereof.
(cd) Each assignment by a Lender Bank of all or any portion of its rights and obligations hereunder and under the other Loan Documents, which assignments shall be on a pro rata basis, shall be made pursuant to an Assignment Agreement substantially (as determined by Agent) in the form attached hereto as Exhibit I (with appropriate insertions acceptable to Agent) (provided however that such Lender Bank need not deliver an Assignment Agreement in connection with assignments to such Lender’s Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall agree and (y) the entire remaining amount of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan; provided, however, that, after giving effect to such assignment, in no event shall the entire remaining amount (if any) of assigning Lender’s aggregate interest in the Revolving Credit (and participations in any outstanding Letters of Credit) and the Term Loan be less than $5,000,000; and
(ii) no assignment shall be effective unless Agent has received from the assignee (or from the assigning Lender) an assignment fee of $3,500 for each such assignment. In connection with any assignment, Borrower and Agent shall be entitled to continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (x) the Agent shall have received a notice of assignment duly executed by the assigning Lender and an Assignment Agreement (with respect thereto) duly executed by the assigning Lender and each assignee; and (y) the assigning Lender shall have delivered to the Agent the original of each Note held by the assigning Lender under this Agreement. From and after the date on which the Agent shall notify Borrower and the assigning Lender that the foregoing conditions shall have been satisfied and all consents (if any) required shall have been given, the assignee thereunder shall be deemed to be a party to this Agreement. To the extent that rights and obligations hereunder shall have been assigned to such assignee as provided in such notice of assignment (and Assignment Agreement), such assignee shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents (including without limitation the right to receive fees payable hereunder in respect of the period following such assignment). In addition, the assigning Lender, to the extent that rights and obligations hereunder shall have been assigned by it as provided in such notice of assignment (and Assignment Agreement), but not otherwise, shall relinquish its rights and be released from its obligations under this Agreement and the other Loan Documents. Within five (5) Business Days following Borrower’s receipt of notice from the Agent that Agent has accepted and executed a notice of assignment and the duly executed Assignment Agreement and assuming the Borrower has consented to such assignment (if their consent is required), Borrower shall, to the extent applicable, execute and deliver to the Agent in exchange for any surrendered Note, new Note(s) payable to the order of the assignee in an amount equal to the amount assigned to it pursuant to such notice of assignment (and Assignment Agreement), and with respect to the portion of the Indebtedness retained by the assigning Lender, to the extent applicable, new Note(s) payable to the order of the assigning Lender in an amount equal to the amount retained by such Lender hereunder. Agent, the Lenders and the Borrower acknowledge and agree that any such new Note(s) shall be given in renewal and replacement of the surrendered Notes and shall not effect or constitute a novation or discharge of the Indebtedness evidenced by any surrendered Note, and each such new Note may contain a provision confirming such agreement. In addition, promptly following receipt of such Notes, Agent shall prepare and distribute to Borrower and the assigning Lender and the assignee Lender a revised Schedule 1.2 attached hereto setting forth the applicable new Percentages of the Lenders (including the assignee Lender), taking into account such assignment.
(d) Each Lender agrees that any participation agreement permitted hereunder shall comply with all applicable laws and shall be subject to the following restrictions (which shall be set forth in the applicable Participation Agreement):
(i) such Lender shall remain the holder of its Notes hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 13.8(d) with respect to rights of setoff and the benefits of Section 11 hereof, a participant shall have no direct rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or grant any sub-participations in its participation interest hereunder or any part thereof; and
(iv) such Lender shall retain the sole right and responsibility to enforce the obligations of the Borrower relating to the Notes and the other Loan Documents, including, without limitation, the right to proceed against any Guarantors, or cause Agent to do so (subject to the terms and conditions hereof), and the right to approve any amendment, modification or waiver of any provision of this Agreement without the consent of the participant (other than a participant which is an Affiliate of such Lender), except for those matters covered by Section 13.11(a) through (f) hereof (provided that a participant may exercise approval rights over such matters only on an indirect basis, acting through such Lender, and Borrower, Agent and the other Lenders may continue to deal directly with such Lender in connection with such Lender’s rights and duties hereunder). Borrower agrees that each participant shall be deemed to have the right of setoff under Section 9.6 hereof in respect of its participation interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the Indebtedness were owing directly to it as a Lender under this Agreement and shall be entitled to the benefits of Section 11 hereof. The amount, terms and conditions of any participation shall be as set forth in the participation agreement between the issuing Lender and the Person purchasing such participation, and none of the Borrower, the Agent and the other Lenders shall have any responsibility or obligation with respect thereto, or to any Person to whom any such participation may be issued. No such participation shall relieve any issuing Lender of any of its obligations under this Agreement or any of the other Loan Documents, and all actions hereunder shall be conducted as if no such participation had been granted.
(e) The Agent shall maintain at its principal office a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders, the Percentages of such Lenders and the principal amount of each type of Advance owing to each such Lender from time to time. The entries in the Register shall be conclusive evidence, absent manifest error, and the Borrower, the Agent, and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Advances recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender upon reasonable notice to the Agent and a copy of such information shall be provided to any such party on their prior written request. The Agent shall give prompt written notice to Borrower of the making of any entry in the Register or any change in such entry.
(f) Nothing in this Agreement, the Notes or the other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees and participants permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement, the Notes or the other Loan Documents.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (MSC Software Corp)