Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of: (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and (B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender. (ii) Assignments shall be subject to the following additional conditions: (A) no assignment may be made to a natural person, (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons, (C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement, (E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee, (F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and (G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act. (b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a). (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement. (f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses. (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. (i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed) of:
delayed and, in the case of the Borrower, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.10 or 2.13, (iii) any Lender that has asserted pursuant to Section 2.07(b) or 2.11 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitments, Revolving any Lender; provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a), (1) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.10, 2.13 or Assignee has 8.04(c)) and (3) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in
Section 4.01 (e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02
(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 8.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Samples: Three Year Term Loan Credit Agreement (AbbVie Inc.)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed to it Term Loans, the Revolving Loans, the Swing Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachthe Letters of Credit); provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) ofthat:
(Ai) Administrative Borrower; provided, that no consent of Administrative Borrower if any such assignment shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred the assigning Lender’s Revolving Credit Outstandings and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Credit Commitments, such assignment shall cover the same percentage of such Lender’s Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.Credit Outstandings and Revolving Credit Commitment;
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the aggregate amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event (if less than the Assignor’s entire interest) be less than (A) in a minimum amount (unless waived by Agent) the case of the Revolving Credit Facility, $5,000,000 or an integral multiple of $5,000,000 1,000,000 in excess thereof or (except such minimum amount shall not apply to B) in the case of the Term Loan Facility, $2,500,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (I) an with the consent of the Borrower and the applicable Administrative Agent or (II) if such assignment is being made to a Lender or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Approved Fund of such Lender; and
(iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Approved Fund of a Lender, such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made subject to the prior consent of the applicable Administrative Agent and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing. Any such assignment need not be ratable as an assignment of a proportionate part of all among the assigning Lxxxxx's rights Term Loan Facility and obligations under this Agreement,the Revolving Credit Facility.
(Eb) the The parties to each assignment shall execute and deliver to Agent (the applicable Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording in the applicable Register, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsany Note (if the assigning Lender’s Loans are evidenced by a Note) subject to such assignment. Upon such execution, addressesdelivery, acceptance and related information with respect to recording in the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx Register and the Assignee,
(F) unless waived receipt by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing Administrative Agent from the assignee of an assignment fee in the amount of $3,500, and
3,500 (Gother than in the case of an assignment by a Lender to an Affiliate of such Lender or by any Agent or their respective Affiliates) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that Agent receives the executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender, and if such Lender under the Loan Documentswere an Issuer, of such Issuer hereunder and thereunder, and (ii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16those which survive the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, The Revolving Facility Agent shall maintain (or cause at its address referred to be maintained) in Section 11.8 a copy of each Assignment and Acceptance delivered to and accepted by it and a register on which it enters for the name recording of all participants in the Loans held by it (names and addresses of the Revolving Credit Lenders and the Issuers, the Revolving Credit Commitments of and principal amount (and stated interest thereon) of the portion Revolving Loans, Swing Loans and Letter of Credit Obligations (specifying the Reimbursement Obligations) owing to each such Loans that is subject Lender and each Issuer from time to such participations) time (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un‘‘
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(a)(iib) below, any Each Lender may (x) with the written consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed) assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments(y) with the written consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), assign to one or more assignees so long as other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Revolving Credit Loans made by it; provided, however, that (i) such prospective assignee is an Eligible Transferee (each, an "Assignee"), with assignment shall require the prior written consent of the Administrative Borrower (each such which consent shall not be unreasonably withheld withheld, conditioned or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower delayed nor shall it be required (1) if an during the existence of a payment or bankruptcy Event of Default under Sections 8.1, 8.2(a)(iDefault) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower which consent shall be deemed to have consented to a proposed assignment been given unless it objects Administrative Borrower shall object thereto by written notice to Administrative Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 10 Business Days after having received notice thereof; and
(B) Agent and), solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (x) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof),
, (Diii) each partial assignment shall be made except as an assignment provided in the last sentence of a proportionate part of all the assigning Lxxxxx's rights this Section 12.07(b) [Assignments and obligations under this Agreement,
(E) Participations], the parties to each such assignment shall execute and deliver to the Administrative Agent and the Administrative Borrower (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Administrative Agent, for the benefit of the Administrative Agent, a processing and directly with recordation fee of $3,500 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignmentLender or a Related Fund of such Lender), together with payment instructions(iv) no such assignment shall be made to (A) the Borrowers or any of their Subsidiaries, addresses(B) any natural persons (or holding company, investment vehicle or trust for, or owned and related information operated for the primary benefit of a natural person) or (C) a Defaulting Lender, (v) no such assignment shall be made to any of the Borrowers’ Affiliates (the “Affiliate Permitted Assignees”) unless (x) such assignment is with respect to the AssigneeTerm Loans and is of an amount that does not exceed, in the aggregate with all other Term Loans held by Affiliate Permitted Assignees, 35% of the aggregate principal amount of the then outstanding Term Loans as of such date and (y) no Affiliate Permitted Assignees shall have been given any right to Borrowers approve or disapprove any amendment, waiver or consent under the Loan Documents and Agent (and Revolving Agent if applicable) any Loans held by such Lxxxxx and Affiliate Permitted Assignee for purposes hereof shall be automatically deemed to be voted pro rata according to the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee Loans of all other Lenders in the amount of $3,500aggregate (other than such Affiliate Permitted Assignee); provided, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing feethat, (i) the Commitment of an Affiliate Permitted Assignee may not be increased or extended without the consent of such Affiliate Permitted Assignee and (ii) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects such Affiliate Permitted Assignee disproportionately adversely relative to other affected Lenders shall require the consent of such Affiliate Permitted Assignee, and (vi) no written consent of the Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender, a Related Fund of such Lender; provided, that the outgoing Lender shall provide the Administrative Borrower with at least ten (10) Business Days’ prior written notice of such assignment or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect . Notwithstanding anything to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest contrary contained in this AgreementSection 12.07(b) [Assignments and Participations], a Lender may, subject to the provisions of Section 17.9, disclose may assign any or all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (ia “Related Party Assignment”); provided, however, that (I) a Loan (the Borrowers and the registered note, if any, evidencing Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale Administrative Agent for recordation on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un,
Appears in 1 contract
Samples: Credit Agreement (Funko, Inc.)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all grant participations in, at any time or times, the Loan Documents, Loans, Letter of Credit Obligations and any Commitment or of any portion of its rights and thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties under the Loan Documents (including the Obligations owed thereunder, whether evidenced by a writing or not, to it and its Commitments) an Affiliate or to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrowerany other Person; provided, however, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate any such disposition (other than natural persons) a participation pursuant to Section 10.2(c), or a disposition of a Lender; provided further, that Administrative Borrower shall be deemed any type to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a another Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan PartyLender) shall (i) be subject to the consent of Agent and, any Permitted Holderif no Event of Default shall have occurred and be continuing, any Defaulting the consent of Borrower, which consent of Borrower shall not be unreasonably withheld, denied or delayed, (ii) require the execution of an assignment agreement (an "Assignment Agreement" substantially in the form attached hereto as Exhibit F and otherwise in form and substance satisfactory to, and acknowledged by, Agent) and (iii) be conditioned on such assignee Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of representing to the assigning Lender hereunder and under Agent that it is purchasing the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount applicable Loans to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights it for its own account, for investment purposes and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and not with a copy view to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptancethe distribution thereof; and, provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); providedfurther, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time assign or create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations or any of such Lender, including any pledge its Notes in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank System (or U.S. Treasury Regulation 31 CFR §203.24any successor regulation), and any Lender that is an investment fund may assign the Obligations held by it and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted Lender's rights under applicable lawthis Agreement and the other Loan Documents to another investment fund managed by the same investment advisor; provided, however, that no such pledge to a Federal Reserve Bank shall release such Lender from any of its such Lender's obligations hereunder or substitute under any such pledgee or assignee for such Lender as a party heretoother Loan Document.
(hb) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each In the case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans under this Section 10.2, the assignee shall have, to an Affiliate the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender or a Related Fund of such Lender hereunder; provided, however, that (i) any such partial assignment shall be at least (x) $5,000,000 if such assignee is not a Loan Lender and (and y) in multiples of $1,000,000 in the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of event such assignment or sale on the Register (and each registered note shall expressly so provide) assignee is a Lender; and (ii) each such 139 assignment shall be of a constant, and not a varying, percentage of the assigning Lender's rights and obligations under this Agreement with respect to the Commitment being assigned and the assignment shall cover the same percentage of the assigning Lender's Loans and Commitments being assigned and Letter of Credit Obligations; and, provided, further, that no Lender shall hold a Revolving Credit Commitment nor a Term Loan Commitment, as the case may be of less than $5,000,000 after giving effect to any assignment or sale such assignment. Upon execution by the assignor and the assignee of all or part an instrument pursuant to which the assignee assumes such rights and obligations, payment by such assignee to such assignor of an amount equal to the purchase price agreed between such assignor and such assignee and delivery to Agent and Borrower of an executed copy of such Loan (and instrument together with payment to Agent of a processing fee of $3,500, such assignee shall have, to the registered note, if any, evidencing the same) may be effected only by registration extent of such assignment or sale on (unless otherwise provided therein), the Registersame rights and benefits as it would have if it were a Lender hereunder and the assignor shall be, together with to the surrender extent of such assignment (unless otherwise provided therein) released from its obligations under this Agreement. Borrower hereby acknowledges and agrees that any assignment will give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a "Lender." In all instances, each Lender's liability to make Loans shall be several and not joint and shall be limited to such Lender's Pro Rata Share of the registered noteapplicable Commitment. Upon any such assignment, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereuponBorrower, at its own expense, shall execute and deliver to Agent in exchange for the request surrendered Note of the designated assignee(sassignor Lender a new Note to the order of the assignee Lender in an amount equal to the Commitment assumed by such assignee Lender and if the assignor Lender has retained a Commitment hereunder a new Note to the order of the assignor Lender in an amount equal to such retained Commitment. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. The Notes surrendered to Agent shall be returned by Agent to Borrower marked "cancelled".
(c) or transferee(sSubject to Section 10.2(a), one or more new registered notes each Lender may sell participations in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion part of its Loans to an Affiliate of and its Commitments; provided that (a) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation and the participating Lender shall remain a "Lender" for all purposes under this Agreement, (b) any such grant of a participation will be made in compliance with all applicable state or a Related Fund of such Lenderfederal laws, rules, and which assignment is not recorded in regulations, (c) any such participation shall be divided pro rata among the Register, participating Lender's share of the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (Loan and the principal amount Letter of Credit Obligations, and (and stated interest thereond) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall not grant any participation under which the participant shall have rights to approve any obligation amendment to disclose all or any portion waiver of this Agreement or the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitmentsLoan Documents, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure amendment or waiver would (i) extend the maturity date for payment of the Loan in which such participant is necessary participating; (ii) reduce the interest rate or the amount of principal or Fees applicable to establish that the Loan in which such commitmentparticipant is participating, loan, letter other than as a result of credit waiving the applicability of any post-default increase in interest rates or other obligation is in registered form unFees; or
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) assign, to one or more assignees so long as such prospective assignee is an Eligible Transferee banks or other financial institutions regularly engaged in making or acquiring loans, all or a portion of its interests, rights and obligations under this Agreement (eachincluding all or a portion of its Commitment and the Loans at the time owing to it); provided, an "Assignee")however, with the that (i) Agent (in its sole discretion) must give its prior written consent to such assignment, (each ii) if no Event of Default and/or monetary Default shall then exist and be continuing, Borrower must give its prior written consent to such assignment, which consent shall not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) delayed and if an Event of Default or a monetary Default shall be so continuing, then Borrower's consent shall not be required, (iii) each such assignment shall be of a constant, and not a varying, percentage of all the assigning Lender's rights and obligations under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is this Agreement as a Lender or an Affiliate and the other Loan Documents, (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(Civ) the aggregate amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall not be in a minimum amount (less than $10,000,000 unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of 's then outstanding Loans and Commitment is less than $10,000,000 in which is an Affiliate of each other or a Related Fund of event such new Lender to the extent that may assign the aggregate amount of the Loans made by such Lender and its entire Commitment to be assigned to all such new Lenders is at least $5,000,000),
make Loans, (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(Ev) the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee of $5,000 and (vi) if no Default and/or Event of Default shall then be continuing, Bankers agrees to retain at least a 22.2222% interest in the amount Loans. Upon the later of $3,500acceptance pursuant to this Section, and
and the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (G5) Business Days after the execution thereof, (A) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to provided in such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under this Agreement and the other Loan Documents, and (iiB) the assigning assign- ing Lender thereunder shall, to the extent that rights provided in such assignment, be released from its obligations under this Agreement and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance(and, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering cover- ing all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such assigning Lender shall cease to be a party hereto and theretohereto, but it shall continue to receive the benefit of the indemnifications referred to or provided for in, Section 9.14); provided, that nothing contained herein . Borrower shall release execute replacement Notes (in the form of Exhibit B) in connection with any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)assignment.
(cb) By executing and delivering an Assignment and AcceptanceAccep- tance, the assigning Lender thereunder and the Assignee assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment the representation and Acceptancewarranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations represen- tations made in or in connection with this Agreement or any of the other Loan Documents, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Loan Document Documents, or any other instrument or document furnished pursuant hereto, ; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any Loan Party other Person or the performance per- formance or observance by Borrower any Loan Party other Person of any of its obligations obli- gations under this Agreement or any of the other Loan Document Documents, or any other instrument or document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with Agreement and the other Loan Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee will, assignee will independently and without reliance upon Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed per- formed by it as a Lender.
(dc) Immediately upon Agent's Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and assignee together with the required processing feefee referred to in Section 9.27(a) above and the written consent of Agent (and of Borrower, if applicablerequired) to such assignment Agent shall (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register, and delivery of (iii) give prompt notice thereof to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee Borrower and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoLenders.
(ed) Any Each Lender may at any time without the consent of Borrower, but upon the prior written consent of Agent, sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests financial institutions regularly engaged in making or acquiring loans in all or any a portion of its Obligations, rights and obligations under this Agreement (including all or a portion of its Commitment, Commitment and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsLoans owing to it); provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations obli- gations under this Agreement shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrowersthe participating banks or other entities shall be entitled to the benefit of the provisions contained in Sections 2.5, Agent2.9, Revolving Agent2.10 and 9.14 as if such Participant were a Lender, and the (iv) Borrower, Agent and other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement Agreement, and the other Loan Documents, (iv) no such Lender shall transfer or grant any participating interest under which retain the Participant has sole right to enforce the right obligations of Borrower, Guarantors and Standby Purchasers relating to the Loans and to approve any amendment toamendment, or any consent modification or waiver with respect to, of any provision of this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, but with respect to any participation, than the matters referred to in the last sentence of Section 9.4 a Lender may allow its participating Lender would participant to have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementapproval rights with respect thereto).
(fe) In Any Lender may, in connection with any such assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower any Guarantor or any grant of a security interest inStandby Purchaser, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businessesAffiliates furnished to each such Lender by or on behalf of Borrower, Guarantors and/or Standby Pur- chasers.
(gf) Any Lender which is organized under the laws of any jurisdiction other provision in this Agreement notwithstandingthan the United States or any state or other political subdivision thereof shall, and if pursuant to Section 9.27(a), any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement is assigned to secure obligations any other bank or financial institution, the assigning Lender shall cause the assignee, concurrently with the effectiveness of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect assignment to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan furnish to Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Form 1001 (and the registered note, if any, evidencing the same) may be assigned or sold in whole such other forms or in part only by registration certificates wherein such assignee claims entitlement to complete exemption from or reduction of such assignment or sale U.S. federal withholding tax on the Register (and each registered note shall expressly so provideall interest payments hereunder) and (ii) agree (for the benefit of Borrower) to provide Bor- rower a new form upon the expiration or obsolescence of any assignment or sale of all or part of such Loan (previously delivered form and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together comparable statements in accordance with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale applicable U.S. laws and regulations and amendments duly executed by) the holder of and completed by such registered noteassignee, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption. Notwithstanding anything to the designated assignee(scontrary herein, nothing in this Section 9.27(f) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by require a Lender of all or any portion of its Loans to an Affiliate of such Lender or provide a Related Fund of such Lender, and form which assignment it is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable legally permitted to the Registerprovide.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Fixed Rate Loan Agreement (Wellsford Real Properties Inc)
Assignments and Participations. (ia) Subject to The Borrower may not assign its rights or obligations hereunder or under the conditions set forth in clause Notes without the prior consent of all of the Lenders and the Agent.
(a)(iib) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it Loans, its Notes, and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee Commitments (each, an "Assignee"), but only with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative the Borrower shall be required (1) if an Event of Default under Sections 8.1and the Agent, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an any assignment of Revolving Loans or Revolver Credit Commitments, Revolving Agentthe Issuing Lender and the Swingline Lender, which consent in each case shall not be unreasonably withheld); provided, PROVIDED that (i) no such consent shall be required in connection with an the case of any assignment to another Lender, an Affiliate of a Person that is Lender or an Approved Fund with respect to a Lender or an Affiliate (other than natural persons) of a Lender.
Lender and no consent by the Borrower shall be required if a Default has occurred and is continuing; (ii) Assignments each such assignment shall be subject in an amount at least equal to the following additional conditions:
$5,000,000 (Aunless (x) no such assignment may be made is to another Lender, an Affiliate of a Lender or an Approved Fund with respect to a natural person,
(B) no assignment may be made to a Loan Party Lender or an Affiliate of a Loan PartyLender, any Permitted Holder(y) after giving effect to such assignment and all other such assignments by such assigning Lender occurring simultaneously or substantially simultaneously therewith, any Defaulting such assigning Lender shall hold no Commitments or any of its Affiliates, Loans hereunder or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(Cz) the amount of the Commitments and/or Loans Borrower and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to Agent shall otherwise agree); (iii) each such assignment by a Lender of its Revolving Credit Exposure or Revolving Credit Commitment (determined as and obligation to acquire participations in Letters of the date the Assignment Credit and Acceptance with respect to such assignment is delivered to AgentSwingline Loans) shall be made in a minimum amount such manner so that the same portion of its Revolving Credit Exposure and Revolving Credit Commitment (unless waived by Agentand obligation to acquire participations in Letters of Credit and Swingline Loans) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender assigned to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
respective assignee; (Div) each partial such assignment by a Lender of its Incremental Loans of a particular Series or Incremental Loan Commitments of a particular Series shall be made as an assignment in such manner so that the same portion of a proportionate part its Incremental Loans of all such Series and Incremental Loan Commitments of such Series is assigned to the assigning Lxxxxx's rights and obligations under this Agreement,
respective assignee; (Ev) the parties to each assignment shall execute and deliver to the Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing and recordation fee in the amount of $3,500, and
; and (Gvi) the assignee, if it is not already a Lender, shall deliver to the Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent Questionnaire. Upon acceptance and recording pursuant to paragraph (the "Administrative Questionnaire"d) and all information and other documents required under the Patriot Act.
(b) From of this Section 11.06, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance andAcceptance, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto andhave, to the extent that of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and the Agent), the obligations, rights and obligations benefits of a Lender hereunder have been holding the Commitment(s), Loans, LC Exposure and Swingline Exposure (or portions thereof) assigned to it pursuant (in addition to the Commitment(s), Loans, LC Exposure and Swingline Exposure, if any, theretofore held by such Assignment assignee) and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(cCommitment(s) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed byportion(s) the holder of such registered note, whereupon, at the request of the designated assignee(sthereof) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registerso assigned.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of the Borrower and the Lenders and their respective successors and assigns, except that the Borrower may not assign any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with hereunder without the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell grant to one or more commercial banks, financial institutions, banks or other Persons institutions (each a "Participant") participating interests in all its Revolving Credit Commitment or any portion or all of its ObligationsLoans, its Commitmentin each case, in minimum amounts of the lesser of (x) the entire remaining amount of such Lender's Loans and the other rights and interests Commitments or (y) five million dollars ($5,000,000); provided that no minimum amount shall be required in respect of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided-------- any participation in whole or in part, that (i) to another Lender or (ii) to an Affiliate of any Lender. In the Originating event of any such grant by a Lender of a participating interest to a Participant, whether or not upon notice to the Borrower and the Administrative Agent, such Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agentits obligations hereunder, and the Lenders Borrower and the Administrative Agent shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Agreement. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall transfer or grant any participating interest under which retain the Participant has sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such participation agreement -------- may provide that such Lender will not agree to any modifications, amendments or waivers of this Agreement or any other Loan Document, except to which require the extent consent of such amendment to, or Lender without the consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselvesParticipant. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject Sections 4.03, 4.04 and 11.03 with respect to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the its participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16interest; provided that all amounts payable to a Lender for the -------- account of a Participant under Sections 4.03, 4.04 and 11.03 shall be determined as if such Participant Lender had not granted such participation to the Participant. An assignment or other transfer which is not permitted by Section 11.08(c) shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except given effect for purposes of this Agreement only to the extent such entitlement to receive of a greater payment results from a Change participating interest granted in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementaccordance with this Section 11.08(b).
(fc) In connection with any such assignment With the written consent of the Borrower (which consent will not be unreasonably withheld or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under delayed) and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstandingAdministrative Agent, any Lender may at any time create a security interest inassign to one or more banks or other institutions (each an "Assignee") all, or pledge, all or any portion a part of its rights and obligations under and interest in this Agreement to secure obligations and the Notes, in each case, in minimum amounts of the lesser of (x) the entire remaining amount of such Lender's Loans and Commitments or (y) five million dollars ($5,000,000), including any pledge and such Assignee shall assume such rights and obligations, pursuant to an instrument executed by such Assignee and such transferor Lender which shall be substantially in favor the form of Exhibit H hereto; provided that the written consent --------- -------- of the Borrower shall not be required in respect of any Federal Reserve Bank assignment in accordance with Regulation A whole or in part, (i) to another Lender, (ii) to an Affiliate or Approved Fund of the any Lender or (iii) to a Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24(iv) to any Person if an Event of Default under Sections 8.01(a), and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (has occurred and is continuing; provided further that no minimum amount or consent of the registered note, if any, evidencing the same) may Administrative Agent -------- ------- shall be assigned or sold required in respect of any assignment in whole or in part only by registration of such assignment or sale on the Register part, (and each registered note shall expressly so providei) and to another Lender, (ii) to an Affiliate or Approved Fund of any assignment Lender or sale of all or part (iii) to a Federal Reserve Bank. Upon execution and delivery of such Loan (an instrument and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding upon notice to the contraryAdministrative Agent together with payment to the Administrative Agent of a processing fee in the amount of three thousand five hundred dollars ($3,500), such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender as set forth in such instrument of assumption, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. In Upon the case consummation of any assignment by a Lender of all or any portion of its Loans pursuant to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unthis
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Insight Communications Co Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Revolving Credit Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including the Obligations owed to it all of its rights and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely obligations with respect to Section 5.1)the Revolving Loans, 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving the Swing Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andthe Letters of Credit, solely and in the case of an assignment of Revolving Loans or Revolver Commitmentsa Synthetic Tranche Lender, Revolving Agentits Synthetic Tranche Credit-Linked Deposit); provided, however, that no (i) if any such consent assignment shall be required in connection with an of the assigning Revolving Credit Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, such assignment to a Person that is a Lender or an Affiliate (other than natural persons) shall cover the same percentage of a such Revolving Credit Lender.
’s Revolving Credit Outstandings and Revolving Credit Commitments, (ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the aggregate amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the assignor’s entire interest) be less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment is delivered being made to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment Lender or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Approved Fund of such Lender and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be subject to the prior consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld or CREDIT AGREEMENT THE PREMCOR REFINING GROUP INC. delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required (x) for any assignment occurring when any Event of Default shall have occurred and be continuing and (y) for any assignment by any Affiliate of the Administrative Agent made as an assignment within 15 Business Days after the Closing Date of a proportionate part of all its Revolving Credit Commitment held on the assigning Lxxxxx's rights and obligations under this Agreement,Closing Date.
(Eb) the The parties to each such assignment shall execute and deliver to Agent (the Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsany Revolving Credit Note (if the assigning Revolving Credit Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon the execution, addressesdelivery, acceptance and related information with recording of any Assignment and Acceptance and, other than in respect of assignments made pursuant to the AssigneeSection 2.17 (Substitution of Lenders) and Section 11.1(c)(Amendments, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by AgentWaivers, Etc.), the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From 3,500 from and after the effective date that Agent receives the executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Revolving Credit Lender under the Loan Documentsand, if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the assigning Lender Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notification in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16for those surviving the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Revolving Credit Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes The Administrative Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable at its address referred to the Register.
in Section 11.8 (i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Premcor Inc)
Assignments and Participations. (ia) Subject This Agreement shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of the Company and the Banks and their respective successors and assigns, except that the Company may not assign any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with hereunder without the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot ActBanks.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender Bank may at any time sell grant to one or more commercial banks, financial institutions, banks or other Persons institutions (each, a "Participant") participating interests in all its Commitment or any portion or all of its ObligationsLoans. Each Bank agrees to give to the Company, its Commitmentwith a copy to the Agent, prior written notice of any grant of a participating interest hereunder, which notice shall include the name of the Participant and the other rights amount of the interest being granted. In the event of any such grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Company and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; providedAgent, that (i) the Originating Lender 47 52 such Bank shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agentits obligations hereunder, and the Lenders Company and the Agent shall continue to deal solely and directly with the Originating Lender such Bank in connection with the Originating Lendersuch Bank's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or Agreement. Any agreement pursuant to which any Bank may grant any such a participating interest under which shall provide that such Bank shall retain the Participant has sole right and responsibility to enforce the obligations of the Company hereunder including the right to approve any amendment toamendment, or any consent modification or waiver with respect toof any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement or any other Loan Documentdescribed in clauses (i) through (v), except to inclusive, of SECTION 11.4 without the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable Participant. Subject to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount ofSECTION 11.8(e), the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower Company agrees that each Participant shall be entitled to the benefits of Section 16 SECTIONS 4.3, 4.4 and 11.3(ii) with respect to its participating interest. An assignment or other transfer which is not permitted by clause (subject c) below shall be given effect for purposes of this Agreement only to the requirements extent of a participating interest granted in accordance with this clause (b).
(c) Any Bank may at any time assign to one or more banks or other institutions (each, an "Assignee") all, or a proportionate part of all, of its rights and limitations thereinobligations under this Agreement and the Notes, including and such Assignee shall assume such rights and obligations, pursuant to an instrument executed by such Assignee and such transferor Bank, with (and subject to) the requirements under Section 16.2 signed consent of the Company and the Agent (it being understood which consent shall not be unreasonably withheld); provided, however, any such assignment shall be in the minimum aggregate amount of $10,000,000; provided, further, that the documentation required under Section 16.2 foregoing consent requirement shall not be applicable (i) in the case of, and this subsection (c) shall not restrict, an assignment or other transfer by any Bank to an affiliate of such Bank or to a Federal Reserve Bank or (ii) if any event specified in SECTION 8.1(a), 8.1(g), 8.1(h), 8.1(l) or 8.1(m) has occurred and is continuing. Upon (1) execution and delivery of such an instrument, (2) payment by such Assignee to such transferor Bank of an amount equal to the purchase price agreed between such transferor Bank and such Assignee and (3) payment by the transferee Bank or transferor Bank to the Agent of an administrative fee in the amount of $3,500, such Assignee shall be delivered a Bank party to this Agreement and shall have all the participating Lender)) rights and obligations of a Bank with a Commitment as set forth in such instrument of assumption, and the transferor Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. Upon the same extent as if it were a Lender and had acquired its interest by consummation of any assignment pursuant to paragraph this subsection (bc), the transferor Bank, the Agent and the Company shall make appropriate arrangements so that, if required, new Notes are issued to the Assignee.
(d) No Assignee, Participant or other transferee of Section 16; provided that such Participant any Bank's rights shall not be entitled to receive any greater payment under Section 16, with respect to any participation, SECTION 4.3 or 4.4 than its participating Lender such Bank would have been entitled to receive, except receive with respect to the extent rights transferred, unless such entitlement transfer is made with the Company's prior written consent or by reason of the provisions of SECTION 4.4 requiring such Bank to receive designate a greater payment results from different lending office under certain circumstances or at a Change in Law that occurs after time when the Participant acquired the applicable participation or the Borrower has specifically consented circumstances giving rise to such greater entitlementpayment did not exist.
(fe) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor No Participant of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued entitled to the designated assignee(sreceive any greater payment under SECTION 4.3, 4.4 or 11.3(ii) or transferee(s). Prior than such Bank would have been entitled to the registration of assignment or sale of any Loan (and the registered note, receive if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by it had not granted a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject participation to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Health Care Property Investors Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed to it Term Loans, the Revolving Loans, the Swing Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachthe Letters of Credit); provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) ofthat:
(i) (A) Administrative Borrower; provided, that no consent of Administrative Borrower if any such assignment shall be required (1) if an Event of Default under Sections 8.1the assigning Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred such assignment shall cover the same percentage of such Lender’s Revolving Credit Outstandings and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans Credit Commitment and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in if any such assignment shall be of the case of an assignment of Revolving assigning Lender’s Term Loans or Revolver and Term Loan Commitments, Revolving Agent; provided, that no such consent assignment shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) cover the same percentage of a such Lender.’s Term Loans and Term Loan Commitments;
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (shall be, as determined as of the date of the Assignment and Acceptance with respect to such assignment, (A) an assignment of the assignor’s entire interest in any Facility, (B) an assignment to a Lender or an Affiliate or Approved Fund of such Lender or (C)(1) an assignment of Term Loans and Term Loan Commitments in an amount that is an integral multiple of $1,000,000, (2) any assignment of any Revolving Credit Outstandings and Revolving Credit Commitments in an amount that is an integral multiple of $1,000,000 or (3) an assignment of any other amount made with the consent of the Borrower and the Administrative Agent; and
(iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, such assignment shall be subject to the prior consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 11.2, (x) the consent of the Borrower shall not be required for any assignment occurring when any Event of Default shall have occurred and be continuing and (y) the consent of the Borrower shall not be required for any assignment by any Affiliate or Approved Fund of the Administrative Agent or the Syndication Agent of the Commitments held on the Closing Date by any such Affiliate or Approved Fund if such assignment is delivered made within the first 60 days as part of the syndication of the Term Loan Facility; and provided, further, that the consent of each Issuer (such consent not to Agentbe unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in a minimum amount exposure under one or more Letters of Credit (unless waived by Agentwhether or not then outstanding) and the consent of $5,000,000 the Swing Loan Lender (except such minimum amount consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility. Any such assignment need not apply be ratable as between the Term Loan Facility and the Revolving Credit Facility. Notwithstanding the foregoing or anything to (I) an the contrary set forth herein, any assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, Loans or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is Commitments to an Affiliate of each other or a Related Fund of such new Affiliated Lender shall also be subject to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),requirements set forth in clause (k) below.
(Db) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Administrative Agent, for Agent's separate account, a processing fee its acceptance and recording in the amount of $3,500Register, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, any Note (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain ’s Loans are evidenced by a register comparable to the Register.
(iNote) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register")assignment. A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unUpon the
Appears in 1 contract
Assignments and Participations. (i) a. This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
b. Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
i. all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower (each such consent not to be unreasonably withheld withheld) and each Agent, and
ii. all or delayeda portion of its Revolving Credit Commitment and the Revolving Loans made by it with the written consent the Borrower (such consent not to be unreasonably withheld) of:
(A) Administrative Borrowerand each Agent; provided, however, that no written consent of the Borrower, the Collateral Agent or the Administrative Borrower Agent shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2A) in connection with an any assignment by a Lender to a Person that is a Lender, an Affiliate of such Lender or an Affiliate a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender; provided further, that Administrative under this Section 12.07(b), the consent of the Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall not be required in connection with if an assignment to a Person that Event of Default has occurred and is a Lender or an Affiliate (other than natural persons) of a Lendercontinuing.
(ii) c. Assignments shall be subject to the following additional conditions:
i. Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
ii. The parties to each such assignment may shall execute and deliver to the Administrative Agent, for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, including the USA PATRIOT Act; and
iii. No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder, Holder (or other equity holder of Holdings) or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(C) d. Upon such execution, delivery and acceptance, from and after the amount recordation date of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agenton the Register, , (A) the assignee thereunder shall be become a “Lender” hereunder and, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender addition to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's Xxxxxx’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) e. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feef. The Administrative Agent shall, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), acting solely for this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereonthereon)owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
g. Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Borrower, Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) held (which consent of the applicable Agent and Borrower must be evidenced by such Lxxxxx. Other than Agent’s or Borrower’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a the fully executed Assignment and Acceptance.
h. A Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such a Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a i. If any Lender sells participations in the a Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Loan that is the subject to such participations) of the participation (the "”Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's ’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder the Code or Treasury Regulations, including without limitation, Section 5f.103-1(c) of the United States Treasury Regulations. A Loan (and the note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each note shall expressly so provide). Any participation of such Loan (and the note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
j. Any Person who purchases or is assigned or participates in any portion of such Loan shall comply with Section 2.10(d).
k. Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefit of Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it were a Lender; provided that a participant shall not be entitled to receive any greater payment under Section 2.10 or Section 2.11 with respect to its participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
l. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any Securitization.
Appears in 1 contract
Assignments and Participations. (iA) Subject to the conditions set forth in clause (a)(ii) below, any Lender No Obligor may assign and delegate all ------------------------------ its respective rights or obligations hereunder or under the Notes or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with other Credit Document without the prior written consent of all of the Lenders.
(each such B) Each Lender may assign to any Eligible Person any of its Loans, its Notes, its Letter of Credit Interests and its Commitments (but only with the consent (which shall not be unreasonably withheld or delayed) of:
(A) of Borrower, the Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred Agent and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent the Arranger and, solely in the case of an assignment of the Revolving Loans or Revolver Credit Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a the Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; providedhowever, that (i) no such consent by -------- ------- Borrower, the Originating Lender Issuing Lender, the Arranger or the Administrative Agent shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest be required in the Obligationscase of any assignment to another Lender or any Lender's Affiliate or any Approved Fund of any Lender (in which case, the Commitments, assignee and the other rights and interests assignor Lenders shall give notice of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under assignment to the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, Administrative Agent); (ii) the Originating Lender no consent of Borrower need be obtained if any Default or Event of Default shall remain solely responsible for the performance of such obligations, have occurred and be continuing; (iii) Borrowerseach assignment, Agent, Revolving Agent, other than to a Lender or any Lender's Affiliate or any Approved Fund of any Lender and the Lenders shall continue to deal solely and directly with the Originating Lender other than any assignment effected by Xxxxxxx Xxxxx Capital Corporation in connection with the Originating syndication of the Commitments (unless Borrower and the Administrative Agent otherwise agree), shall be in an aggregate amount at least equal to $10 million unless the assigning Lender's rights and obligations under this Agreement and the other Loan Documents, exposure is reduced to $0; (iv) no Lender shall transfer or grant any participating interest subject to (i) above, assignments under which the Participant has Revolving Facility will require the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Issuing Lender, ; and (v) in no participation shall event may any such assignment be sold made to a natural person, (vi) no participation shall be sold to a Loan Party any Obligor or an Affiliate any of its Affiliates without consent of all Lenders. Any assignment of a Loan Party, and (vii) except as otherwise provided below shall be effective only upon appropriate entries with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off thereto being made in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note Note shall expressly so provide) and (ii) any ). Any assignment or sale transfer of all a Loan shall be registered on the Register only upon surrender for registration of assignment or part transfer of the Note evidencing such Loan (if a Note was issued in respect thereof), accompanied by an instrument in writing substantially in the form of Exhibit F, --------- and upon consent thereto by Borrower, the Administrative Agent, the Arranger and the registered note, if any, evidencing Issuing Lender to the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s)extent required above, one or more new registered notes Notes (if requested by the New Lender) in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s)assignee and the old Notes shall be returned by the Administrative Agent to Borrower marked "cancelled". Prior Upon execution and delivery by the assignee to Borrower, the Administrative Agent and the Arranger of an instrument in writing substantially in the form of Exhibit F, and upon consent --------- thereto by Borrower, the Administrative Agent and the Issuing Lender to the registration extent required above, and in the case of a Loan, upon appropriate entries being made in the Register the assignee shall have, to the extent of such assignment or sale (unless otherwise provided in such assignment with the consent of any Loan (and the registered note, if any evidencing the sameAdministrative Agent), Borrowers shall treat the Person obligations, rights and benefits of a Lender hereunder holding the Commitment(s), Loans (or portions thereof) and Letter of Credit Interests assigned to it (in whose name such Loan (addition to the Commitment(s), Letter of Credit Interests and the registered noteLoans, if any, evidencing theretofore held by such assignee) and the sameassigning Lender shall, to the extent of such assignment, be released from the Commitment(s) (or portion(s) thereof) so assigned. At the time of each assignment pursuant to this Section 12.06(b) to a Person which is registered not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(3) of the owner thereof Code) for the purpose of receiving all payments thereon and for all other Federal income tax purposes, notwithstanding notice the respective assignee Lender shall provide to Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 5.06 Certificate) described in Section 5.06(b). Upon any such assignment (other than to a Lender or any Affiliate of a Lender and other than in connection with the Arranger's initial syndication of the Loans the Arranger's next succeeding five assignments) the assignee Lender shall pay a fee of $3,500 to the contraryAdministrative Agent. Upon any such assignment, certain rights and obligations of the assigning Lender shall survive as set forth in Section 12.07.
(C) A Lender may sell or agree to sell to one or more other Eligible Persons a participation in all or any part of any Loans and Letter of Credit Interests held by it, or in its Commitments, in which event each purchaser of a participation (a "Participant") shall be entitled to the rights and benefits of ----------- the provisions of Section 5 (provided, however, that no Participant shall be -------- ------- entitled to receive any greater amount pursuant to Section 5 than the transferor Lender would have been entitled to receive in respect of the participation effected by such transferor Lender had no participation occurred) with respect to its participation in such Loans, Letter of Credit Interests and Commitments as if such Participant were a "Lender" for purposes of said Section, but, except as otherwise provided in Section 4.07(c), shall not have any other rights or benefits under this Agreement or any Note or any other Credit Document (the Participant's rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Participant). All amounts payable by Borrower to any Lender under Section 5 in respect of Loans, Letter of Credit Interests and its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participation in such Loans, Letter of Credit Interests and Commitments, and as if such Lender were funding each of such Loan, Letter of Credit Interests and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interests and Commitments in which no participations have been sold. In the case of any assignment by no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Credit Document, except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to any modification or amendment set forth in subclauses (I), (II), (III) or (VIII) of clause (a) of the proviso to Section 12.04.
(D) In addition to the assignments and participations permitted under the foregoing provisions of this Section 12.06, any Lender may assign and pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and, in the case of a Lender that is an Affiliate investment fund, any such Lender may assign or pledge any portion of its Loans and its Notes to its trustee in support of its obligations to its trustee, without notice to or consent of Borrower or the Administrative Agent. No such assignment shall release the assigning Lender from its obligations hereunder.
(E) A Lender may furnish any information concerning Borrower or any Subsidiary in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants) subject, however, to the provisions of Section 12.11. In addition, each of the Administrative Agent and the Arranger may furnish any information concerning any Obligor or a Related Fund any of its Affiliates in the Administrative Agent's or the Arranger's possession to any Affiliate of the Administrative Agent or the Arranger. The Obligors shall assist any Lender (at such Lender's cost and expense, and which assignment is not recorded except as provided in the Register, the assigning Lender, on behalf Commitment Letter in respect of Borrowers, shall maintain a register comparable syndication) in effectuating any assignment or participation pursuant to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register this Section 12.06 (including the identity of any Participant or any information relating to a Participant's interest during syndication) in any commitmentswhatever manner such Lender reasonably deems necessary, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is including participation in registered form unmeetings with prospective transferees.
Appears in 1 contract
Samples: Credit Agreement (Tmil Corp)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Any Lender may assign and participate and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent or participants (each such consent not be unreasonably withheld or delayedan “Assignee”) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliatesall, or any Person whoratable part of all, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans Obligations and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to Documents; provided, however, that each Lender so doing shall give Agent concurrent written notice of each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) provided further that Agent shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly only with the assigning each Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or participation, any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, may disclose all documents and information which it now or hereafter may have relating to any Loan Party Borrower and its Subsidiaries and their respective businesses.
(gc) Any other provision in this Agreement notwithstanding, any Lender which is a banking institution may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce sole through Agent such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoApplicable Laws but at all times subject to the rights and limitations contained herein.
(hd) Agent (with respect acknowledges that as of the date hereof, WFCF is the only Lender. Subsequent to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)the date hereof, in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that Agent desires to allow another party to execute a joinder agreement or become a Lender sells participations in under the Loanprovisions of this Agreement, so long as no Default or Event of Default shall have occurred and be continuing, Borrower shall have a right of prior approval of such Lxxxxxaction, as a provided that Borrower shall not unreasonably withhold its approval of any additional Lender and provided further that Borrower's non-fiduciary agent on behalf response for a period of Borrowers, ten (10) Business Days after being notified by Agent of such action shall maintain (or cause be deemed to be maintained) a register on which it enters the name approval of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject Borrower to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration action of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, any Lender however, that none of the Loan Parties may assign or transfer any of its rights hereunder without the prior written consent of each Lender and delegate any such assignment without the Lenders' prior written consent shall be null and void.
(b) Each Lender may, (x) with the written consent of the Collateral Agent, assign to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Term Loan Commitments and the Term Loan Documents (including the Obligations owed to made by it and its Commitments(y) with the written consent of the Collateral Agent and the Administrative Agent, assign to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachother lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitments, an "Assignee"the Revolving Loans made by it and its Pro Rata Share of Letter of Credit Obligations), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required however, that, in either case (1i) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, a Lender or a Related Fund of such fund or account managed by a Lender), or (IIii) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount assignee agrees to be assigned bound by the terms of the agreement among Lenders referred to all such new Lenders is at least $5,000,000in Section 11.02(b),
, (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(Eiii) the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Collateral Agent, for its acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent may continue to deal solely a processing and directly with recordation fee of $5,000 (except the assigning payment of such fee shall not be required if the assignee is an Affiliate of a Lender or a fund or account managed by a Lender) and (iv) no written consent of the Collateral Agent or the Administrative Agent shall be required in connection with the interest so assigned any assignment by a Lender to an Assignee until written notice Affiliate of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning a Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not fund or account managed by a Lender. Upon such execution, shall deliver to Agent (delivery and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a "Lender" hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ci) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (iiB) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iiiC) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (ivD) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (vE) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (viF) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) The Borrowers authorize the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Administrative Agent, and the Lenders shall continue Administrative Agent agrees, to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "Register") on which it enters for the name recordation of the names and address addresses of the Lenders and the Commitments of, and principal amount of the Loans (the "Registered Loans") and Letter of Credit Obligations owing to each Lender as from time to time. The entries in the registered owner of the applicable Loans (Register shall be conclusive and binding for all purposes, absent manifest error, and the principal amount thereof Borrowers, the Agents and stated interest thereon) held by such Lxxxxx. Other than the Lenders shall treat each Person whose name is recorded in connection with an assignment by the Register as a Lender hereunder for all purposes of all or this Agreement. The Register shall be available for inspection by the Administrative Borrower, any portion Lender and the Collateral Agent at any reasonable time and from time to time upon reasonable prior notice.
(iii) Upon receipt by the Administrative Agent of its portion of Loans an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes subject to an Affiliate of such Lender or a Related Fund of assignment, the Collateral Agent shall, if the Collateral Agent consents to such Lender assignment and if such Assignment and Acceptance has been completed, accept such Assignment and Acceptance and the Administrative Agent shall record the information contained therein in the Register.
(iiv) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(iv) In the event that a any Lender sells participations in the a Registered Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, Lender shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all .
(vi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall provide the Participant Register Agents and the Lender with a completed Internal Revenue Service Form W-8BEN (including the identity Certificate of any Participant Foreign Status) or a substantially similar form for such purchaser, participant or any information relating other affiliate who is a holder of beneficial interests in the Registered Loan.
(c) Each Lender may sell participations to one or more banks or other entities in or to all or a Participant's interest in any commitments, loans, letters portion of credit or its other rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Borrower or any Guarantor (except as set forth in Section 10.08 of this Agreement or any other Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un).
Appears in 1 contract
Assignments and Participations. (a) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(i) Subject to the conditions set forth in clause (a)(iiii) belowhereof, any each Lender may with the written consent of the Collateral Agent, such consent not to be unreasonably withheld, assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Commitments and any Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachmade by it; provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
that (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment and/or Loans) (except such minimum amount shall not apply to (I) an assignment (1) for which the Collateral Agent waives such minimum amount or delegation (2) by any a Lender to any other (x) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
5,000,000 or a multiple of $1,000,000 in excess thereof, (DB) each partial assignment no consent of the Collateral Agent shall be made as required for an assignment by a Lender to a Lender, an Affiliate of such Lender or a proportionate part Related Fund of all the assigning Lxxxxx's rights and obligations under this Agreement,
such Lender, (EC) the parties to each such assignment shall execute and deliver to the Collateral Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Collateral Agent, for the benefit of the Collateral Agent, a processing and directly with recordation fee of $5,000 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver an Affiliate of such Lender or a Related Fund of such Lender), and (D) notwithstanding anything to Agent (the contrary contained herein, unless an Event of Default has occurred and with a copy is continuing, no such assignment may be made to Revolving Agent with respect to Revolving Loans an Excluded Entity. Upon such execution, delivery and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance Acceptance, which effective date shall be at least three (3) Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto hereto).
(ii) Before any Initial Lender transfers or assigns all or a portion of its rights and theretoobligations under this Agreement with respect to all or a portion of its Commitments or any Loan made by it, or sells a participation in all or a portion of its rights and obligations under this Agreement (each such transfer, assignment and sale being hereinafter referred to as a “Sale”); provided, that nothing contained herein to any Person (other than an Affiliate or Related Fund of such Initial Lender) at any time (such proposed purchaser, a “Buyer”), such Initial Lender (the “Selling Lender”) shall release offer to the other Initial Lender in writing a right of first refusal to purchase the portion of its interest so offered for Sale to the Buyer on the same terms and conditions on which the Buyer has agreed to consummate such Sale (the “Right of First Refusal”). Promptly following receipt by an Initial Lender of any assigning Right of First Refusal, such Initial Lender from obligations that survive shall promptly (and in any event, within five (5) Business Days) accept or reject such Right of First Refusal, and, if accepted, shall promptly (and in any event within five (5) Business Days of receipt by the termination Selling Lender of such acceptance) consummate the purchase of such Sale, failing which such Selling Lender shall be free to consummate such Sale to the Buyer. For the avoidance of doubt, if an Initial Lender makes a Sale to an Affiliate or Related Fund, the provisions of this Agreement, including Section 12.07(b)(ii) applicable to any Initial Lender shall apply to such assigning Lender's obligations under Section 15 and Section 17.9(a)Affiliate or Related Fund.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, and ; (vi) such Assignee assignee represents and warrants that it is not an Excluded Entity; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeThe Administrative Agent shall, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), acting solely for this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of the Lenders, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”).
(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance and subject to any consent required from the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Lxxxxx. Other than Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection with an assignment by the Register and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(if) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(ig) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.08.
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of Section 2.08 and Section 4.05 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided it complies with the requirements thereof as if it were a Lender.
(j) Notwithstanding anything to the contrary herein, and without the need of any consent, joinder agreement or any other action on the part of any Secured Party or any Secured Party’s pledgee, any Secured Party may pledge all or any portion of such Secured Party’s interests, rights or obligations hereunder or under the Participant Register (including other Loan Documents to secure the identity obligations of any Participant such Secured Party or any information relating of its Affiliates to a Participant's interest in any commitmentsfinancial institution or other lender (and/or any agent, loans, letters trustee or representative of such financial institution or lender) providing any loan or other extension of credit to or for the account of such Secured Party or any of its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unAffiliates.
Appears in 1 contract
Samples: Financing Agreement (OTG EXP, Inc.)
Assignments and Participations. (i) Subject The Lenders shall be permitted to sell participations in their Loans and commitments. In addition, the Lenders shall be permitted to assign all or a portion of their Loans to a Qualified Institution in minimum amounts of $5,000,000 and multiples of $1,000,000, subject to the conditions set forth consent of the Administrative Agent and the Borrower, which consent in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent case shall not be unreasonably withheld withheld. Notwithstand- ing the foregoing, neither Administrative Agent’s or delayed) of:
(A) Administrative the Borrower; provided’s consent shall be required for assignments during the continuance of an Event of Default. In addition, that no consent of the Administrative Agent or the Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment to an affiliate of Revolving Loans such Lender or Revolver Commitments, Revolving Agent; provided, that no such consent to another Lender. A fee of $2,500 shall be required in connection with an assignment payable by the assignor to the Administrative Agent upon any assignment. With respect to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments participation, the Lenders shall be subject permitted to the following additional conditions:
(A) no assignment may be made grant participation interest in their Loans to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new existing Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, finance companies, insurance companies or to other financial institutionsinstitutions in minimum amounts of $5,000,000. Notwithstanding the foregoing, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder Xxxxxxxx’s consent shall not constitute a "Lender" hereunder or under be required during the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence continuance of an Event of Default. To the extent provided in each participation agreement, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant participants shall have the right to participate directly in the making of decisions by same benefits as the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participationyield protection and increased cost provisions (but not in excess of the principal). Voting rights of participants shall be limited to those matters with respect to which the affirmative vote of the Lender from which it purchased its participation would be required as described under “Voting” above. Notwithstanding anything to contrary set forth above, than its participating so long as no Event of Default shall have occurred and is be continuing, no Lender would have been entitled to receive, except to the extent such entitlement to receive shall enter into an assignment of or sell a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, it rights in its rights under and interest Loans which would result in this Agreement, a Lender mayholding a Commitment without participants of less than $5,000,000, subject to the provisions unless as a result of Section 17.9, disclose all documents and information which it now a cancellation or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A reduction of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24aggregate Commitments, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; providedprovided however, that no such pledge Lender shall release such Lender be prohibited from any of assigning its obligations hereunder or substitute any such pledgee or assignee for such Lender entire Commitment so long as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only is otherwise permitted by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registerthis section.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective permitted successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and the Term Loan Documents (including the Obligations owed to made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Collateral Agent and the Administrative Borrower (each such consent of the Administrative Borrower not to be unreasonably withheld withheld, conditioned or delayed) of:
(A) Administrative Borrower); provided, however, that no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required (1A) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender; provided, further, that the written consent of the Administrative Borrower shall be required (such consent not to be unreasonably withheld, conditioned or delayed, and shall be deemed consented to the extent the Administrative Borrower shall have failed to respond to a request for same within seven Business Days) for any such sale, assignment or transfer by a Lender unless an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and or is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) at the time of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderassignment.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, including the USA PATRIOT Act; and
(iii) No such assignment shall be made to a natural person,
(A) any Loan Party or any of their respective Affiliates or (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least 3 Business Days after the delivery thereof to the extent that Collateral Agent the aggregate amount to be assigned to all date recorded in the Register (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a “Lender” hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectivelythe “Register”) for the recordation of the names and addresses of the Lenders, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (Commitments and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided such participant shall not be entitled to receive any greater payment under these Sections than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(l) Any Lender may at any obligation to disclose time pledge or assign a security interest in all or any portion of the Participant Register its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the identity indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any Participant such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Samples: Financing Agreement (Colonnade Acquisition Corp. II)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), this Agreement with the prior written consent (each such consent not be unreasonably withheld or delayed) ofrespect to:
(Ai) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Collateral Agent and the Administrative Borrower, and
(ii) all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, however, that no (A) the written consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed, (2) shall not be required upon the occurrence and during the continuance of an Event of Default and (3) shall be deemed given if not denied in writing by the Administrative Borrower within 5 Business Days of the date of the written request therefor and (B) no written consent of any Agent or the Administrative Borrower shall be required (1) if in connection with any assignment by a Lender to an Event Agent or a Lender, an Affiliate of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 an Agent or 8.5 has occurred and is continuing a Lender or a Related Fund of an Agent or a Lender or (2) if such assignment is in connection with an assignment to a Person that is a Lender any merger, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in all or any substantial portion of the case business or loan portfolio of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof); and
(ii) The parties to each such assignment may shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder (or other Equity Holder) or any of their respective Affiliates, or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least three Business Days after the delivery thereof to the extent that the aggregate amount to be assigned to all Collateral Agent (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a “Lender” hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting solely for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name names and addresses of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Sections 2.09 and 2.10 with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any Securitization.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrowers and the Administrative Agent, which consents shall not be unreasonably withheld or delayed) of:
delayed and, in the case of the Borrowers, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrowers shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrowers (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving provided that notice thereof shall have been given to the Borrowers and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrowers pursuant to this Section 9.07(a), (1) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from a Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or Assignee has 9.04(c)) and (3) unless and until the Borrowers shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrowers pursuant to this Section 9.07(a), the Borrowers) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrowers pursuant to this Section 8.07(a) (in which case the Borrowers shall pay the fee required by subclause (F)(3) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrowers, if applicableshall maintain at its address referred to in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (other than a "Participant"Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or any Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) such Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrowers, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by any Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrowers after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrowers as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrowers received by it from such Lender as more fully set forth in Section 9.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (a) The Company may not assign any of its rights or obligations hereunder, under the Notes, under the Swingline Notes, under the Letters of Credit or under the Bankers' Acceptances without the prior consent of all of the Lenders and the Administrative Agent, except pursuant to the on-lending contemplated by the Canadian Forest Credit Agreement.
(b) Each Lender may assign any of its Loans, its Note (and the Swingline Note in the case of BOM), its Commitment and the Swingline Loans, its Letter of Credit Interest and its Bankers' Acceptances (but only with the consent of, in the case of its outstanding Commitment and the Swingline Loans, the Company and the Administrative Agent, which consent shall not be unreasonably withheld or delayed and which consent shall not be required if an Event of Default has occurred and is continuing, and, in the case of a Letter of Credit Interest, the Issuing Bank); PROVIDED that
(i) Subject no such consent by the Company or the Administrative Agent shall be required in the case of any assignment (other than the Swingline Loans) to another Lender; with respect to the conditions set forth in clause Swingline Loans, the Company's consent shall be required for such assignment, but such consent shall not be unreasonably withheld or delayed;
(a)(iiii) belowexcept to the extent the Company and the Administrative Agent shall otherwise consent, any such partial assignment (other than to another Lender) shall be in an amount at least equal to C$5,000,000;
(iii) each such permitted assignment by a Lender may of its Loans, Note, Commitment, Letter of Credit Interest or Bankers' Acceptances shall be made in such manner so that the same portion of its Loans, Note, Commitment and Letter of Credit Interest is assigned to the respective assignee; PROVIDED that in the case of a permitted assignment of the Swingline Note or the Swingline Loans, BOM shall assign and delegate its entire Swingline Loan or Commitment;
(iv) no Lender shall assign all or any portion of its rights and duties under Commitment, Bankers' Acceptances or Letter of Credit Liabilities or Loans to any financial institution which is unable to make the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"representation contained in Section 5.08(f), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(Bv) Agent and, solely in Chase Canada and its affiliate shall at all times maintain a Commitment hereunder of not less than the case lesser of an assignment (x) 10% of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that the aggregate of the Commitments and (y) C$8,000,000. Notwithstanding the foregoing no such consent consents shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment for any participation which may be made for purposes of Section 2.05(c) hereof. Upon execution and delivery by the assignee to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Partythe Company, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans Administrative Agent and the other rights and obligations Issuing Bank of the assigning Lender an instrument in writing pursuant to which such assignee agrees to become a "Lender" hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall if not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not already a Lender) having the Commitment, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment the Letter of Credit Interest specified in such instrument, and upon consent thereto by the required processing feeCompany and the Administrative Agent as provided in this Section 11.06(b) and the Issuing Bank, (i) the Assignee thereunder assignee shall be a party hereto andhave, to the extent that of such assignment (unless provided in such assignment with the consent of the Company, the Administrative Agent and the Issuing Bank), the obligations, rights and obligations benefits of a Lender hereunder have been holding the Commitment, Loans and, if applicable, the Letter of Credit Interest (or portions thereof) assigned to it pursuant (in addition to the Commitment, Loans and Letter of Credit Interest theretofore held by such Assignment assignee) and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights of such assignment, be released from the Commitment, Loans and obligations Letter of Credit Interest (or portion thereof) so assigned. Any Bankers' Acceptances specified in such instrument shall remain the liability and obligation of the Lender hereunder holding such Bankers' Acceptances and under such Lender shall be entitled to all of the other Loan Documents have been assigned by it pursuant to such Assignment rights, titles and Acceptance, relinquish its rights (except benefits arising out of this Agreement with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement such Bankers' Acceptances (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and theretoincluding reimbursement rights); provided, however, that nothing contained herein the assignee shall release indemnify such Lender and hold such Lender harmless from and against any losses or costs paid or incurred by such Lender in connection with such Bankers' Acceptances (other than losses or costs which arise out of the negligence or wilful misconduct of such Lender). Upon each such assignment the assigning Lender from obligations shall pay the Administrative Agent an assignment fee of $3,000; provided that survive the termination no such fee shall be required if a Lender is only transferring all or a portion of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)a Bankers' Acceptance.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) A Lender may sell or agree to sell to one or more other than as provided Persons (each a "PARTICIPANT") a participation in such Assignment and Acceptanceall or any part of any Loans, Letter of Credit Interest and/or Bankers' Acceptances held by it, or in its Commitment, PROVIDED that, except in respect of Bankers' Acceptances, such assigning Lender makes no representation Participant shall not have any rights or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement Note or any other Loan Document, except Document (the Participant's rights against such Lender in respect of such participation to be those set forth in the extent agreements executed by such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date Lender in favor of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all . All amounts payable by Borrowers hereunder the Company to any Lender under Section 5 hereof in respect of Loans, Letter of Credit Interest held by it, Bankers' Acceptances held by it and its Commitment, shall be determined as if such Lender had not sold or agreed to sell any participations in such participationLoans, Letter of Credit Interest, Bankers' Acceptances and Commitment, and as if such Lender were funding each of such Loan, Letter of Credit Interest, Bankers' Acceptance and Commitment in the same way that it is funding the portion of such Loan, Letter of Credit Interest, Bankers' Acceptance and Commitment in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Loan Document except thatthat such Lender may agree with the Participant that it will not, if amounts outstanding under this Agreement are due and unpaidwithout the consent of the Participant, agree to (i) increase or extend the term of such Lender's Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans, Letter of Credit Reimbursement Obligations, Bankers' Acceptance Reimbursement Obligations or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, (iv) reduce the rate at which interest is payable thereon, or shall have been declared any fee hereunder payable to the Participant, to a level below the rate at which the Participant is entitled to receive such interest or shall have become due and payable upon fee or (v) consent to any modification, supplement or waiver hereof or of any of the occurrence other Loan Documents to the extent that the same, under Section 10.09 or 11.04 hereof, requires the consent of each Lender.
(ii) In respect of each sale of a participation by a Lender to a Participant, the Company agrees that it shall, at the request of the Administrative Agent on behalf of such Lender, consent to an Event absolute assignment by such Participant to such Lender of Default, each all rights of such Participant shall be deemed to have require payment from the right of set off Company in respect of its participating interest in all Bankers' Acceptances accepted or purchased by such Participant and such Lender hereby agrees to cause such absolute assignment to be entered into by such Lender and the Participant. Upon the assignment of such rights, such Lender shall, subject to this Agreement, thereafter be entitled to enforce such rights against the Company and amounts owing under this Agreement by the Company to such Lender in respect of such assigned rights shall constitute amounts owing to such Lender hereunder to the same extent as if the amount of its participating interest were owing directly to it as such Bankers' Acceptances had been accepted and purchased by such Lender. Such Lender upon granting a Lender under this Agreement. The rights of any Participant only participation shall be derivative through responsible for the Originating Lender with whom administration of all aspects of the purchase and the acceptance by such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions Bankers' Acceptances purchased by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementParticipant.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding11.06, any Lender may at (without notice to the Company, the Administrative Agent or any time create a security interest in, or pledge, other Lender and without payment of any fee) assign and pledge all or any portion of its rights under Loans, its Notes, its Letter of Credit Interest and interest in this Agreement its Bankers' Acceptances to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24regulatory authority, and such Federal Reserve Bank Loans, Notes and Bankers' Acceptances shall be fully transferrable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may enforce furnish any information concerning the Company, Forest or any of the Relevant Parties or any of their Subsidiaries in the possession of such pledge Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.13(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding, no Lender may assign or security participate any interest in any manner permitted under applicable law; providedLoan, that no such pledge shall release such Lender from Letter of Credit Reimbursement Obligation or Bankers' Acceptance Reimbursement Obligation held by it hereunder to the Company or any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, Affiliates without the "Register") on which it enters the name and address prior consent of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any The Lender may sell, transfer, negotiate or assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is other financial institutions all or a portion of the Commitment, the Loans owing to it and an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely interest in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to Notes held by it and a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any commensurate portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant subject to such Assignment and Acceptance, relinquish its rights the proviso to subparagraph (except with respect c) below.
(b) The Lender may sell participations to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and one or more banks or other Persons in the case of an Assignment and Acceptance covering or to all or the remaining a portion of an assigning Lender's its rights and obligations under this Agreement the Loan Documents (including, without limitation, all or a portion of the Commitment, the Loans owing to it and the other Loan DocumentsNotes held by it). In the event of the sale of any participation by the Lender, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive (i) the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agentthe Lender shall remain the holder of such Notes and Obligations for all purposes of this Agreement, and (iv) the Lenders Borrower shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, Agreement.
(ivc) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant Each participant shall be entitled to the benefits of Section 16 (subject to the requirements Sections 2.9, 2.10 and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent 2.13 as if it were a Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to pay to any participant of any interest of the Lender, under Sections 2.10, 2.12 or 2.14, any sum in excess of the sum which the Borrower would have been obligated to pay Lender in respect of such interest had such assignment not been effected or had such participation not been sold.
(d) The Borrower shall cooperate with Lender, at no cost or expense to the Borrower, and had acquired its any other party to whom the Lender may assign or sell participations (or negotiate for such assignment or sale) in all or a portion of the Commitment, the Loans owing to it and an interest by assignment pursuant to paragraph (b) in the Notes. Such cooperation on the part of Section 16; provided that such Participant the Borrower shall include but shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except limited to the extent such entitlement execution and delivery of amendments, modifications and/or supplements to receive a greater payment results from a Change one or more Loan Documents, in Law that occurs after the Participant acquired the applicable participation form and substance as may be required by Lender, at no cost or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject expense to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawBorrower; provided, however, that no such pledge shall release such Lender from any of its amendments, modifications and/or supplements do not materially increase the obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and Borrower or materially diminish the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender rights of the registered note, if any, evidencing Borrower under the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterDocuments.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender No Borrower may assign and delegate or transfer any of its rights or obligations under this Agreement without the prior written consent of each Bank.
(b) Each Bank may assign to one or more banks or other entities all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitment and the Loan Documents (including the Obligations owed Advances owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrowerit; provided, however, that no consent of Administrative Borrower (i) the assignment shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderuniform, and not a varying, percentage of all of the assigning the Bank's rights and obligations under and in respect of the facility being assigned; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and Revolving Credit Commitment being assigned pursuant to the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall not be less than Five Million Dollars ($5,000,000.00) and shall be an integral multiple of One Million Dollars ($1,000,000.00); (iii) the Borrowers and the Agent shall consent to the assignment, which consent, in a minimum amount (unless waived by Agent) of $5,000,000 either case, shall not be unreasonably withheld (except such minimum amount that no consent by the Borrowers or the Agent shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate be required in the case of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender assignment to another Bank and no consent by the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment Borrowers shall be made as required after an assignment Event of a proportionate part of all the assigning Lxxxxx's rights Default shall have occurred and obligations under this Agreement,
be continuing); and (Eiv) the parties to each the assignment shall execute and deliver to the Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or in the remaining portion form attached hereto as Exhibit "G", together with an assignment fee of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)$2,500.00.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender Bank thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment the representation and Acceptancewarranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency sufficiency, or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrowers or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 6.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon the Agent, such assigning Lender Bank or any other LenderBank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee appoints and authorizes the Agent or Revolving Agent, as applicable, to take such actions action as the Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and ; and
(vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender Each Bank may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in all or any a portion of its Obligationsrights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, Revolving Credit Commitment and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsAdvances owing to it); provided, however, that (i) each such participation shall be in an amount not less than Five Million Dollars ($5,000,000.00); (ii) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating LenderBank's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged, ; (iiiii) the Originating Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iiiiv) the Borrowers, Agent, Revolving the Agent, and the Lenders other Banks shall continue to deal solely and directly with the Originating Lender Bank in connection with the Originating LenderBank's rights and obligations under this Agreement Agreement; and (v) the other Loan Documents, (iv) no Lender shall transfer Bank may not agree with the participant to require the participant's consent or grant permit the participant to vote on whether to take or refrain from taking any participating interest under which the Participant has the right action or to approve any amendment toor waiver of any provision of any Loan Document, or any consent or waiver with respect to, this Agreement or any other Loan Documentdeparture by any party therefrom, except to that the extent such amendment toBank may agree with the participant that the Bank will not, or without the consent or waiver with respect vote of the participant, agree to this Agreement (1) increase the Revolving Credit Commitment of such Bank or of subject such Bank to any other Loan Document would additional obligations; (A2) extend any revolving credit or line of credit termination or conversion date affecting the final maturity date of the Obligations hereunder in which such Participant is participating, Bank; (B3) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce interest on, the amount Advances payable to the Bank or any fees or other amounts payable to the Bank; (4) postpone any date for any payment of principal of, or interest on, the interest or fees Advances payable to such Participant through such Lender (the Bank or any fees or other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums amounts payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16Bank; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unor
Appears in 1 contract
Samples: Revolving Line of Credit and Security Agreement (Commercial Net Lease Realty Inc)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to:
(i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the Loan Documents (including written consent of the Obligations owed to it and its Commitments) to one or more assignees Collateral Agent and, so long as such prospective assignee an Event of Default has not occurred and is an Eligible Transferee (eachcontinuing, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no the consent of the Borrower shall be deemed received to the extent the Borrower has not responded to a written request therefor within 5 Business Days of any such request, and
(ii) [reserved]; provided, however, that no written consent of the Collateral Agent, the Administrative Agent or the Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2A) in connection with an any assignment by a Lender to a Person that is a Lender, an Affiliate of such Lender or an Affiliate (other than natural persons) a Related Fund of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
such Lender or (B) Agent and, solely in the case of an if such assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender.
(iic) Assignments shall be subject to the following additional conditions:
(Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (A) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof),; US-DOCS\156209705.12
(Dii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to the Collateral Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Collateral Agent, for the benefit of the Collateral Agent, a processing and directly with recordation fee of $5,000 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignmentLender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, together with payment instructions, addresses, and related information with respect to including the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,USA PATRIOT Act;
(Fiii) unless waived by AgentNo such assignment shall be made to any Loan Party, any equity holder of the assigning Lender Parent or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount its Subsidiaries or any of $3,500, their respective Affiliates; and
(Giv) the assignee, if it is shall not be a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire administrative questionnaire in a form approved by the Administrative Agent (the "“Administrative Questionnaire"”), applicable tax forms (as required under Section 2.09(d)) and all information and other documents required under the Patriot Actrequested “know your customer” documentation.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ;
(ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; US-DOCS\156209705.12
(iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents;
(v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, and ; and
(vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of US-DOCS\156209705.12 assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. Neither the Administrative Agent nor any Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103‑1(c) and proposed Section 1.163-5(b) of the United States Treasury Regulations. For the avoidance of doubt, no Agent (in its capacity as an Agent) shall have responsibility for maintaining a Participant Register or for ensuring that the Lenders observe the provisions of this clause (i).
(j) [Reserved].
(k) Each Lender may sell participations (without the consent of the Borrower, any Agent or any other Lender) to one or more banks or other entities (other than a natural person or the Parent or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that
(i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement and the other Loan Documents;
(iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a US-DOCS\156209705.12 substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document); and
(iv) a participant shall not be entitled to receive any greater payment under Article II, Article III or Article IV than the applicable Lender would have been entitled to receive absent the sale of such the participation sold to such participant, except with the prior written consent of the Agents and the Borrower or except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
Appears in 1 contract
Assignments and Participations. (ia) Subject Each Lender may, with the consent of (x) the Borrowers, such consent not to be unreasonably withheld or delayed, (y) the conditions set forth in clause Administrative Agent, which consent shall not be unreasonably withheld or delayed and (a)(iiz) belowthe Swingline Lenders and the Issuing Banks, any Lender may assign and delegate to one or more Persons (other than natural persons, Defaulting Lenders, or STERIS plc or its Affiliates) all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Loan Documents (including the Obligations owed Advances owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"it), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
; provided that (A) Administrative Borrower; provided, that no the consent of Administrative Borrower the Borrowers shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or continuing, (2B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) the consent of a Lender; provided further, that Administrative Borrower the Borrowers shall be deemed to given if the Borrowers shall not have consented to a proposed assignment unless it objects thereto by objected within 10 Business Days following receipt of written notice to Agent of such proposed assignment, and (with a copy to Revolving Agent with respect to Revolving Loans and Revolver CommitmentsC) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving Agent; provided, that no such consent shall be required from (x) the Administrative Agent or (y) the Borrowers with respect to assignments by any Lender to its Affiliate or to another Lender, provided that in connection each such case prior notice thereof shall have been given to the Borrowers and the Administrative Agent.
(b) Upon demand by the Borrowers (with a copy of such demand to the Administrative Agent) (w) any Defaulting Lender, (x) any Lender that has made a demand for payment pursuant to Section 2.13 or 2.16, (y) any Lender that has asserted pursuant to Section 2.10(b) or 2.14 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (z) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to which the Required Lenders shall have given their consent, will assign to one or more Persons designated by the Borrowers all of its rights and obligations under this Agreement (including, without limitation, all of its Commitment and the Advances owing to it).
(c) In each such case,
(A) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(B) except in the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $10,000,000 or an integral multiple of $5,000,000 1,000,000 in excess thereof;
(except such minimum amount shall not apply to (IC) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),[Reserved];
(D) each partial such assignment made as a result of a demand by the Borrowers pursuant to Section 9.07(b) shall be made as arranged by the Borrowers with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,;
(E) no Lender shall be obligated to make any such assignment as a result of a demand by the parties Borrowers pursuant to each assignment Section 9.07(b), (1) so long as a Default shall execute have occurred and deliver be continuing and (2) unless and until such Lender shall have received one or more payments from one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from STERIS plc or one or more assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Section 2.13, 2.16 or 9.04(c)) and (3) unless and until STERIS plc shall have paid (or caused to be paid) to the Administrative Agent (a processing and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptancerecordation fee of $3,500; provided, however, that Borrowers the Administrative Agent may, in its sole discretion, elect to waive such processing and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bF) From the parties to each such assignment (other than, except in the case of a demand by the Borrowers pursuant to Section 9.07(b), the Borrowers) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrowers pursuant to Section 9.07(b) (in which case STERIS plc shall pay or cause to be paid the fee required by subclause (E)(3) of Section 9.07(c)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(d) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Sections 9.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrowers or the performance or observance by any Loan Party the Borrowers of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) [Reserved];
(vi) such Assignee assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(df) Immediately upon Agent's Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the required processing feeAdministrative Agent shall, if applicablesuch Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and delivery of Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoBorrowers.
(eg) Any The Administrative Agent, acting solely for this purpose as the agent of the Borrowers, shall maintain at its address referred to in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Advances owing to, each Lender may at any from time sell to one or more commercial bankstime (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitmentabsent demonstrable error, and the other rights Borrowers, the Agents and interests of that the Lenders shall treat each Person whose name is recorded in the Register as a Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other entities (other than the other Loan Documents and the Participant receiving the participating interest Borrowers or any of their Affiliates, any Defaulting Lender or any natural person) in the Obligations, the Commitments, and the other or to all or a portion of its rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent, Swingline Lender, Issuing Banks or the Borrowers; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) such Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrowers, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrowers herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except as to matters requiring the extent approval of all the Lenders pursuant to Section 9.01. Each Lender shall promptly notify the Borrowers after any sale of a participation by such amendment to, or consent or waiver with respect Lender pursuant to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestSection 9.07(h), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that the failure of such Participant Lender to give notice to the Borrowers as provided herein shall not be entitled to receive affect the validity of such participation or impose any greater payment under Section 16, with respect to any participation, than its participating obligations on such Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired or the applicable participant. Each Lender that sells a participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inshall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent demonstrable error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(i) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrowers received by it from such Lender as more fully set forth in Section 9.08 and subject to the requirements of Section 9.08 (it being understood that, notwithstanding anything to the contrary set forth in such agreement, the Borrowers shall be third party beneficiaries of such agreement).
(j) Notwithstanding any other provision set forth in this Agreement, any Lender or Issuing Bank may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender or Issuing Bank, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Samples: Credit Agreement (STERIS PLC)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Collateral Agent and the Borrowers (each such consent not to be unreasonably withheld withheld, conditioned or delayed) of:
); provided that (A) Administrative Borrower; provided, that no written consent of the Collateral Agent or the Administrative Borrower Agent shall be required (1x) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender, (B) no consent of the Borrowers shall be required (x) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (y) if any Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or continuing, and (2C) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative the Borrower shall be deemed to have consented to a proposed any such assignment unless it objects shall have objected thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Agents within five (5) ten Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Administrative Agent, for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering or terrorist financing rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation;
(iii) No such assignment shall be made to a natural person,
(A) any Loan Party, Holdings (or other direct or indirect equity holder of the Parent) or any of their respective Affiliates or (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(Giv) the assignee, if it is shall not already be a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire administrative questionnaire in a form approved by Agent acceptable to the Administrative Agent, applicable tax forms (the "Administrative Questionnaire"as required under Section 2.09(d)) and all information and other documents required under the Patriot Actrequested “know your customer” documentation.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least three Business Days after the delivery thereof to the Administrative Agent (or such shorter period as shall be agreed to by the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower at any reasonable time and from time to time upon reasonable prior written notice. For the avoidance of doubt, no Agent (in its capacity as an Agent) shall have responsibility for maintaining a Participant Register or for ensuring that the Lenders observe the provisions of this clause (i).
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations (without the consent of the Borrower, any Agent or any other Lender) to one or more banks or other entities (other than a natural person or to Holdings, the Parent or any of their Affiliates) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits, and subject to the requirements, of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that such participant (A) agrees to be subject to the provisions of Section 2.09(f) as if it were an assignee under paragraph (b) of this Section 12.07 and (B) shall not be entitled to receive any greater payment under Section 2.09 or Section 2.10 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after such participant acquired the applicable participation.
(l) Any Lender may at any obligation to disclose time pledge or assign a security interest in all or any portion of the Participant Register its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the identity indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any Participant such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any information relating Securitization.
(m) Subject to a Participant's interest in any commitmentsSection 12.19, loans, letters of credit or its other obligations under any Loan Document) each Borrower authorizes each Lender to disclose to any Person except participant, secured creditor of such Lender or assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession concerning each Borrower and its Affiliates that has been delivered to the extent such Lender by or on behalf of each Borrower and its Affiliates pursuant to this Agreement or that has been delivered to such disclosure is necessary Lender by or on behalf of each Borrower and its Affiliates in connection with such Lender’s credit evaluation of each Borrower and its Affiliates prior to establish that such commitment, loan, letter of credit or other obligation is in registered form unbecoming a party to this Agreement.
Appears in 1 contract
Samples: Financing Agreement (BRC Inc.)
Assignments and Participations. (ia) Subject This Agreement and the Notes shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of the Borrower and the Agent and each Lender and their respective successors and assigns; provided, however, that the Borrower may not assign or transfer any Lender may assign and delegate all of their rights hereunder, or any portion of its rights and duties under the Loan Documents Notes, without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(including b) Each Lender may, with the Obligations owed to it and its Commitments) written consent of the Agent, assign to one or more assignees so long as such prospective assignee is an Eligible Transferee other lenders or other entities (each, an "Assignee"), with the prior provided that no written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to the Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is and delegation by a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of such Lender) all or a Loan Party, any Permitted Holder, any Defaulting Lender or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the portion of the assigning Lender hereunder Term Loan made by it, and under the other Loan Documents subject to each such assignment Notes held by it); provided, however, that (determined as of the date the Assignment and Acceptance with respect to i) such assignment is delivered to Agent) shall be in a minimum an amount (unless waived by Agent) of which is at least $5,000,000 (except such minimum amount shall not apply to (I) an assignment any Affiliate of a Lender or delegation by any Lender to any other fund or account managed by a Lender, an Affiliate of any Lender, ) or a Related Fund multiple of $1,000,000 in excess thereof (or the remainder of such Lender, or 's Commitment) and (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(Eii) the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Agent, for its acceptance, an Assignment and Acceptance; provided, that Borrowers together with any Note subject to such assignment and such parties shall deliver to the Agent may continue a processing and recordation fee of $5,000. Anything contained in this Section to deal solely the contrary notwithstanding, no consent of the Agent shall be required (and directly with the assigning Lender payment of any fees shall not be required) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the interest so assigned to an Assignee until written notice business or loan portfolio of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agentthe assignee is an Affiliate (other than individuals) of, for Agent's separate or a fund, money market account, a processing fee in the amount of $3,500investment account or other account managed by, and
(G) the assignee, if it is not a Lender. Upon such execution, shall deliver to Agent (delivery and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Agent (or such shorter period as shall be agreed to by the Agent and the parties to such assignment), (A) the assignee thereunder shall become a "Lender" hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights (except with respect to Section 12.03) and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ci) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (iiB) such the assigning 59 66 Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Loan Party of its Subsidiaries or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iiiC) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (ivD) such Assignee assignee will, independently and without reliance upon Agentthe Assigning Lender, such assigning Lender the Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (vE) such Assignee assignee appoints and authorizes the Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, ; and (viF) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amount of the portion of the Term Loan owing to each Lender from time to time (collectively, the "Register") on which it enters ). The entries in the name Register shall be conclusive and address of each Lender as the registered owner of the applicable Loans (binding for all purposes, absent manifest error, and the principal amount Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(iii) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with the Notes subject to such assignment, the Agent shall, if the Agent consents to such assignment and if such Assignment and Acceptance has been completed (i) accept such Assignment and Acceptance, (ii) give prompt notice thereof and stated interest thereon) held by such Lxxxxx. Other to the Borrower (other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate or Lender), (iii) record the information contained therein in the Register, and (iv) prepare and distribute to each Lender and the Borrower (other than in connection with an assignment to an Affiliate or Lender), a revised Annex 1 hereto after giving effect to such assignment, which revised Annex 1 shall replace the prior Annex 1 and become part of such Lender or a Related Fund of such Lender this Agreement.
(iiv) a A Registered Loan (and the registered noteRegistered Note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note Registered Note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered noteRegistered Note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered noteRegistered Note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered noteRegistered Note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes Registered Notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered noteRegistered Note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unAgent
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning LxxxxxXxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx Xxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Term Loan Agreement (Comtech Telecommunications Corp /De/)
Assignments and Participations. (i) 1. This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
2. Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), this Agreement with the prior written consent (each such consent not be unreasonably withheld or delayed) ofrespect to:
(Aa) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and
(b) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that no (A) the consent of any Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (3) shall not be required during the continuance of an Event of Default; 142901395v2 provided, further, that no written consent of the Agents or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2x) in connection with an any assignment to a Person that is by a Lender to any Agent or an any Lender, any Affiliate of any Agent or any Lender or any Related Fund of any Agent or any Lender or (other than natural personsy) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed if such assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, amalgamation, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of any Lender.
(ii) 3. Assignments shall be subject to the following additional conditions:
(Aa) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 100,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (IA) an assignment Agent or delegation by any Lender to any other a Lender, an Affiliate of any Lender, an Agent or a Lender or a Related Fund of such Lender, an Agent or a Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $100,000 in excess thereof),;
(Db) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to the Administrative Agent (and with a copy to the Revolving Agent with respect to Revolving Loans and Revolver Commitments) Agent, if applicable), for its acceptance, an Assignment and Acceptance; provided, that Borrowers and Agent may continue such parties shall deliver to deal solely the Administrative Agent, for the benefit of the Administrative Agent, a processing and directly with recordation fee of $5,000 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to an Assignee until written notice Agent or a Lender, an Affiliate of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and an Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning or a Lender or Assignee has paid a Related Fund of an Agent or a Lender), any forms and certificates required pursuant to Agent, for Agent's separate account, a processing fee in the amount of $3,500, Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and
(Gc) the assignee, if it is not a No such assignment shall be made to any Defaulting Lender, shall deliver to Agent any Loan Party, any Permitted Holder (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an or other direct or indirect equity holder of the Parent), any holder of Subordinated Indebtedness or any of their respective Affiliates, in each case, without the prior written consent of the Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot ActAgent.
(b) From 4. Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderXxxxxx's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein . No assignment shall release any assigning Lender from obligations that survive the termination be effective for purposes of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Agreement unless it has been recorded on the Register as provided in this Section.
(c) 5. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the 142901395v2 assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
6. The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (dthe “Register”) Immediately for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
7. Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, the processing and recordation fee of $5,000, any forms and certificates required pursuant to Section 2.09(e) and all other know-your-customer documentation and information requested by the applicable Agent, and subject to any consent required from any Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent's receipt execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the required processing feeLoans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Revolving Agent, if applicable, a copy of the fully executed Assignment and delivery Acceptance.
8. If any assignment by any Lender holding any promissory note is made after the issuance of notice to such promissory note, the assigning Lender pursuant shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such promissory note to Section 13.1(bthe Administrative Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Administrative Borrower shall issue and deliver a new promissory note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender. 142901395v2
9. In the event that any Lender sells participations in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of such Lender’s rights and obligations under the Loans owning to it, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name and address of each participant and their respective successors and assigns, and the principal amounts (and stated interest thereon) of each Participant’s interest in the Loans or other obligations under the Loan Documents that is the subject of the participation (the ”Participant Register”). The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Participant Register as a Lender hereunder for all purposes of this Agreement. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, neither the Administrative Agent (in its capacity as Administrative Agent) nor the Revolving Agent (in its capacity as Revolving Agent) shall have any responsibility for maintaining a Participant Register.
10. Any Foreign Lender who purchases or is assigned or participates in any portion of the rights and obligations under this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantocomply with Section 2.09(e).
(e) Any 11. Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in or to all or any a portion of its Obligations, its Commitment, rights and obligations under this Agreement and the other rights Loan Documents (including, without limitation, all or a portion of its Commitments and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsLoans made by it); provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrowers, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans , (ivB) no Lender shall transfer action directly effecting an extension of the due dates or grant any participating a decrease in the rate of interest payable on the Loans or the fees payable under which the Participant has the right to approve any amendment tothis Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any consent or waiver with respect to, Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees Parties agree that each Participant participant shall be entitled to the benefits of Section 16 (subject 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the requirements Commitments and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) Loans to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph Section 12.07(b) (b) of Section 16; provided it being understood that such Participant shall not be entitled to receive any greater payment the documentation required under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except 2.09(e) shall be delivered to the extent such entitlement participating Lender, and if additional amounts are required to receive a greater payment results from a Change in Law that occurs after be paid pursuant to Section 2.09, to the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementAdministrative Borrower).
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) 12. Any other provision in this Agreement notwithstanding, any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the or assignment to secure obligations to a Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and loans made to such Federal Reserve Bank may enforce such pledge Lender pursuant to a securitization or security interest in any manner permitted under applicable lawsimilar credit facility (a “Securitization”); provided, provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (. The Loan Parties shall cooperate with respect such Lender and its Affiliates to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)effect the Securitization including, in each case without limitation, by 142901395v2 providing such information as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to may be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held reasonably requested by such Lxxxxx. Other than Lender in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion rating of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterSecuritization.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions Senior Facilities Documentation Principles, substantially the same as and limited to those set forth in clause the Existing Credit Agreement, which provides that the Lenders will be permitted to assign (a)(iia) below, any Lender may assign and delegate all or any portion of its rights and duties loans under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), Term Facility with the prior written consent of the Company (each such consent not to be unreasonably withheld or delayed) of:
and (b) loans and commitments under the Revolving Facility with the consent of the Company (not to be unreasonably withheld), the Swingline Lender and the Issuing Bank; provided that (i) no consent of the Company shall be required in the case of (A) Administrative Borrower; providedthe Term Facility only, that no consent if such assignment is made to another Lender or an affiliate or approved fund of Administrative Borrower shall be required a Lender, (1B) the Revolving Facility only, if such assignment is made to another Revolving Lender or to an Event affiliate of Default under Sections 8.1a revolving Lender of similar creditworthiness, 8.2(a)(ior (C) after the occurrence and during the continuance of a payment or bankruptcy (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred the Company) event of default and is continuing or (2ii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower the Company shall be deemed to have consented to an assignment of Term Loans if the Company does not object within 10 business days of a proposed assignment unless it objects thereto by written notice request therefor. All assignments will require the consent of the Agent, not to be unreasonably withheld or delayed; provided that no consent of the Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andshall be required, solely in the case of an the Term Facility only, if such assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment is made to a Person that is a another Lender or an Affiliate (other than natural persons) affiliate or approved fund of a Lender.
(ii) Assignments shall . Each assignment will be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or in an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information 1,000,000 with respect to the AssigneeTerm Facility and $5,000,000 with respect to the Revolving Facility, have been given to Borrowers or, in each case, if less, all of such Xxxxxx’s remaining loans and Agent (and Revolving Agent if applicable) by such Lxxxxx and commitments of the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing applicable class. An assignment fee in the amount of $3,500, and
(G) 3,500 shall be paid by the assignee, if it is not a Lender, shall deliver respective assignor or assignee to Agent (and with a copy the Agent. The Lenders will be permitted to Revolving Agent with respect to Revolving sell participations in Term Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") loans and all information and other documents required commitments under the Patriot Act.
Revolving Facility without consent being required, subject to customary limitations. Voting rights of participants shall be limited to matters in respect of (a) increases in commitments participated to such participants, (b) From and after the date that Agent receives the executed Assignment and Acceptance andreductions of principal, if applicableinterest or fees, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement extensions of final maturity or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition due date of any Loan Party amortization, interest or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant heretofee payment, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt releases of the required processing fee, if applicable, and delivery guarantees of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for substantially all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder Guarantors or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral and (e) changes in voting thresholds. The Operative Documents shall provide that so long as no default or guaranties (except event of default is continuing, Term Loans may be purchased by and assigned to the extent expressly provided herein Holdings or in any of its subsidiaries on (a) a non-pro rata basis through open market purchases and/or (b) on a pro rata basis through Dutch auctions open to all Lenders in accordance with customary procedures as set forth in the Loan Documents) supporting the Obligations hereunder in which Existing Credit Agreement; provided that any such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation Term Loans shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party automatically and permanently cancelled immediately upon acquisition thereof by Holdings or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect any of its participating interest in amounts owing under this Agreement subsidiaries and no proceeds of the Revolving Facility may be used to consummate such assignment. The Operative Documents will contain customary provisions allowing the same extent as if the amount of its participating interest were owing directly Company to it as replace a Lender under this Agreement. The rights or terminate the commitment of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided prepay that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change Lender’s outstanding Loans in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than full in connection with an assignment by a Lender amendments and waivers requiring the consent of all Lenders or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all Lenders directly adversely affected thereby (so long as the Required Lenders have approved the amendment or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(swaiver), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s)increased costs, taxes, etc. Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registerdefaulting lenders.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed to it Term Loans, the Revolving Loans, the Swing Loans and its Commitmentsthe Letters of Credit); provided, however, that (i) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower if any such assignment shall be required (1) if an Event of Default under Sections 8.1the assigning Lender's Revolving Credit Outstandings and Revolving Credit Commitment, 8.2(a)(i) (solely with respect to Section 5.1)such assignment shall cover the same percentage of such Lender's Revolving Credit Outstandings and Revolving Credit Commitment, 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an if any such assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an of the assigning Lender's Term Loans and Term Loan Commitment, such assignment to a Person that is a Lender or an Affiliate (other than natural persons) shall cover the same percentage of a such Lender.
's Term Loans and Term Loan Commitment, (ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the aggregate amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than (in the case of (x) the Term Loans (or Term Loan Commitments) or (y) in the case of (in aggregate) the Revolving Credit Outstandings (and/or the Revolving Credit Commitments) and the Canadian Term Loans) $5,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of Terra Capital and the Administrative Agent or (B) if such assignment is delivered being made to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment Lender or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Approved Fund of such Lender, and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Approved Fund of a Lender, such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made subject to the prior consent of the Administrative Agent and Terra Capital (which consent shall not be unreasonably withheld or delayed); provided, however, that, notwithstanding any other provision of this Section 11.2, the consent of the Borrowers shall not be required for any assignment which occurs when any Event of Default shall have occurred and be continuing. Any such assignment (i) need not be ratable as an assignment of a proportionate part of all between the assigning Lxxxxx's rights Term Loan Facility and obligations under this Agreement,the Revolving Credit Facility but (ii) shall be ratable as between the Revolving Credit Facility and the Canadian Term Loan.
(Eb) the The parties to each assignment shall execute and deliver to Agent (the Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsany Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. Upon such execution, addressesdelivery, acceptance and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx recording and the Assignee,
(F) unless waived receipt by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing Administrative Agent from the assignee of an assignment fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From 3,500 from and after the effective date that Agent receives the executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender, and if such Lender under the Loan Documentswere an Issuer, of such Issuer hereunder and thereunder, and (ii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16those which survive the payment in full of the Obligations) and be released from any future its obligations to the extent corresponding thereto under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) By executing The Administrative Agent shall maintain at its address referred to in Section 11.8 a copy of each Assignment and delivering Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Commitments of and principal amount of the Loans and Letter of Credit Obligations owing to each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Administrative Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and AcceptanceAcceptance executed by an assigning Lender and an assignee, the assigning Lender thereunder Administrative Agent shall, if such Assignment and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: Acceptance has been completed, (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into accept such Assignment and Acceptance, (ivii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers. Within five Business Days after its receipt of such Assignee willnotice, independently the Borrowers, at their own expense, shall, if requested by such assignee, execute and without reliance upon deliver to the Administrative Agent, new Notes to the order of such assigning Lender assignee in an amount equal to the Revolving Credit Commitments or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed Term Loans assumed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feepursuant to such Assignment and Acceptance and, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b)has surrendered any Note for exchange in connection with the assignment and has retained Revolving Credit Commitments or Term Loans hereunder, this Agreement shall be deemed to be amended new Notes to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments order of the assigning Lender pro tanto.in an amount equal to the Revolving Credit Commitments or Term Loans retained by it hereunder. Such new Notes shall be dated the same date as the surrendered Notes and be in substantially the form of Exhibit B.
(e) Any In addition to the other assignment rights provided in this Section 11.2, each Lender may at assign, as collateral or otherwise, any time of its rights under this Agreement (including rights to payments of principal or interest on the Loans) to (i) any Federal Reserve Bank pursuant to Regulation A of the Federal Reserve Board without notice to or consent of the Borrowers or the Administrative Agent and (ii) any trustee for the benefit of the holders of such Lender's Securities; provided, however, that no such assignment shall release the assigning Lender from any of its obligations hereunder.
(f) Each Lender may sell participations to one or more commercial banks, financial institutions, Persons in or other Persons (a "Participant") participating interests in to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and obligations under the Loan Documents (including all its rights and obligations with respect to the Term Loans, the Revolving Loans and Letters of Credit). The terms of such participation shall not, in any event, require the participant's consent to any amendments, waivers or other modifications of any provision of any Loan Documents; provided, that the consent to any departure by any Loan Party therefrom, or to the exercising or refraining from exercising any powers or rights which such Lender may have under or in respect of the Loan Documents (including the right to enforce the obligations of the Loan Parties), except if any such amendment, waiver or other modification or consent would (i) reduce the Originating Lender shall remain a "Lender" for all purposes amount, or postpone any date fixed for, any amount (whether of this Agreement and principal, interest or fees) payable to such participant under the other Loan Documents and the Participant receiving the participating interest Documents, to which such participant would otherwise be entitled under such participation or (ii) result in the Obligations, the Commitments, and the other rights and interests release of all or substantially all of the Originating Lender hereunder shall not constitute a "Collateral other than in accordance with Section 10.7(b). In the event of the sale of any participation by any Lender" hereunder or under the other Loan Documents and the Originating , (A) such Lender's obligations under this Agreement the Loan Documents shall remain unchanged, (iiB) the Originating such Lender shall remain solely responsible to the other parties for the performance of such obligations, (iiiC) Borrowers, Agent, Revolving Agentsuch Lender shall remain the holder of such Obligations for all purposes of this Agreement, and (D) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant Each participant shall be entitled to the benefits of Section 16 (subject to the requirements Sections 2.14(c), 2.14(e), 2.15 and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent 2.16 as if it were a Lender and had acquired its Lender; provided, however, that anything herein to the contrary notwithstanding, the Borrower shall not, at any time, be obligated to pay to any participant of any interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment Lender, under Section 162.14(c), with respect to 2.14(e), 2.15 or 2.16, any participation, than its participating Lender sum in excess of the sum which the Borrowers would have been entitled obligated to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented pay to such greater entitlement.
(f) In connection with any Lender in respect of such assignment or interest had such participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businessesnot been sold.
(g) Any other provision in this Agreement notwithstanding, any Lender Issuer may at any time create a security interest in, or pledge, all or any portion of assign its rights under and interest obligations hereunder to any other Lender by an instrument in form and substance satisfactory to the Borrowers, the Administrative Agent, such Issuer and such Lender. If any Issuer ceases to be a Lender hereunder by virtue of any assignment made pursuant to this Agreement to secure obligations Section 11.2, then, as of the effective date of such Lendercessation, including any pledge in favor such Issuer's obligations to issue Letters of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, Credit pursuant to Section 2.4 shall terminate and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge Issuer shall release such Lender from any of its obligations be an Issuer hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (only with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf outstanding Letters of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be Credit issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject prior to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form undate.
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that, except in connection with the consummation of the De-SPAC Transactions and the successor in interest to the Borrower becoming the Borrower hereunder in accordance with Section 7.02(c) above, none of the other Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and any Term Loan made by it with the Loan Documents written consent of (including x) the Obligations owed to it Administrative Agent and its Commitments(y) to one or more assignees so long as such prospective assignee no Event of Default has occurred and is an Eligible Transferee continuing, the Borrower (each, an "Assignee"), with the prior written consent (each such consent not to be unreasonably withheld or delayed) of:
(A) ; provided that the Borrower shall have been deemed to have consented to any such assignment unless it shall have objected thereto by written notice to the Administrative BorrowerAgent within 5 Business Days after receiving written notice thereof); provided, however, that no written consent of the Administrative Agent or the Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2A) in connection with an any assignment by a Lender to a Person that is a Lender, an Affiliate of such Lender or an Affiliate a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by regardless of whether an Event of Default has occurred and is continuing, the Borrower’s prior written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an for any assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a LenderDisqualified Institution.
(iic) Assignments shall be subject to the following additional conditions:
(Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (A) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof),; and
(Dii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, for its acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Administrative Agent, a processing and directly with recordation fee of $3,500 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignmentLender or a Related Fund of such Lender or if otherwise waived by the Administrative Agent) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and Anti-Money Laundering Laws;
(iii) No such assignment shall be made to
(A) any Loan Party, together with payment instructions, addresses, and related information with respect to other equity holder of Equity Interests of the Assignee, have been given to Borrowers and Agent Topco (and Revolving Agent if applicableother than the Warrants) by such Lxxxxx and the Assigneeor any of their respective Affiliates,
(FB) unless waived by Agent[reserved], or
(C) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the assigning Lender or Assignee has paid to Agent, for Agent's separate accountprimary benefit of, a processing fee in the amount of $3,500, andnatural Person) ..
(Gd) the assigneeUpon such execution, if it is not a Lenderdelivery and acceptance, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least three (3) Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ;
(ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents;
(v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, and ; and
(vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive absent manifest error and binding for all purposes and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Borrower or the Administrative Agent pursuant to Section 12.07(b) (which consent of the Borrower or the Administrative Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the Administrative Agent).
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"). A Loan (and the registered note, if any, evidencing the same”) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended, successor or final version). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Any Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d) ..
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that
(i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower , the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement and the other Loan Documents; and
(iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document); provided that such participant (A) agrees to be subject to the provisions of Section 2.12 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.09 or Section 2.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation; provided further that, for the avoidance of doubt, in the case of a participation, any required form or documentation required thereunder shall be delivered to the participating Lender
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with With the prior written consent (each such of Company, which consent of Company shall not be unreasonably withheld withheld, delayed or delayed) of:
(A) Administrative Borrower; providedconditioned, that no consent of Administrative Borrower and shall not be required (1i) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2ii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender; provided furtherprovided, that Administrative Borrower Company shall be deemed to have consented to a proposed assignment unless it objects shall object thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 10 Business Days after having received notice thereof; and
(B) , and with the prior written consent of Agent, which consent of Agent andshall not be unreasonably withheld, solely in the case of an assignment of Revolving Loans delayed or Revolver Commitmentsconditioned, Revolving Agent; provided, that no such consent and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender.
, any Lender may assign and delegate to one or more assignees (iieach, an “Assignee”; provided, however, that an “Assignee” shall not include (x) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a any Loan Party or an Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor (or a related investment fund of the Equity Sponsor that is managed by or advised by the same investment advisor as the Equity Sponsor or by an affiliate of such investment advisor) or (y) any Permitted HolderPerson that cannot (either directly or through an Applicable Designee) lend to the Borrowers in Dollars, any Defaulting Lender Euros or Sterling), all or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any portion of the foregoing Persons,
(C) Obligations, the amount of the Revolver Commitments and/or Loans and the other rights and obligations of the assigning such Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (Ix) an assignment or delegation by any Lender to any other Lender, Lender or an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that Borrowers and Agent may continue to deal solely and directly with the assigning such Lender in connection with the interest so assigned to an Assignee until (1) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Administrative Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
, (F2) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (3) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, Agent for Agent's ’s separate account, account a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives notifies the assigning Lender (with a copy to Borrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Revolver Commitments arising therefrom. The Revolver Commitment allocated to each Assignee shall reduce such Revolver Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (each a "“Participant"”; provided, however, that a “Participant” shall not include (i) any Loan Party, Affiliate of a Loan Party, Equity Sponsor, or Affiliate of Equity Sponsor (or a related investment fund of the Equity Sponsor that is managed by or advised by the same investment advisor as the Equity Sponsor or by an affiliate of such investment advisor) or (ii) any Person that cannot (either directly or through an Applicable Designee) lend to the Borrowers in Dollars, Euros or Sterling), participating interests in all or any portion of its Obligations, its Revolver Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Revolver Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving AgentBorrowers, Borrowersthe Collections of Loan Parties or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent, any Loan Party Borrower and its their Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoLaw.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, Borrowers solely for this purpose) shall maintain, or cause to be maintained, maintain a register (collectively, the "“Register"”) on which it enters the name and address of each Lender as the registered owner of the applicable Loans Revolver Commitment (and the principal amount thereof of Advances owing thereto and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) each, a “Registered Loan”). A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such a Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers Borrowers, Agent and the Lenders shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposespurposes (in each case, absent manifest error), notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such LxxxxxLender, as a non-fiduciary agent on behalf of BorrowersBorrowers solely for this purpose, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "“Participant Register"”). A Registered Loan (and the registered noteRegistered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No .
(j) Agent shall make a copy of the Register (and each Lender shall have any obligation to disclose all or any portion make a copy of the its Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary it has one) available for review by Borrowers from time to establish that such commitment, loan, letter of credit or other obligation is in registered form untime as Borrowers may reasonably request.
Appears in 1 contract
Assignments and Participations. (ia) Subject to The Lender may, with the conditions set forth in clause (a)(ii) belowconsent of the Parent and the Borrower, any Lender which consent may be held at the sole discretion of the Parent and the Borrower, assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld Assignees all or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and (including, without limitation, all or a portion of the other Loan Documents, such Lender shall cease to be a party hereto and theretoCommitment or the Advances); provided, however, that nothing contained herein no such consent by the Parent or the Borrower shall release be required in the case of any assigning Lender from obligations assignment to an affiliate of the Lender; and provided, further, that survive the termination any such partial assignment shall be in an amount at least equal to $5,000,000 or in an integral multiple of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)$1,000,000 in excess thereof.
(cb) By executing and delivering an Assignment and AcceptanceThe Lender may, with the assigning Lender thereunder consent of the Parent and the Assignee thereunder confirm to and agree with each other Borrower, which consent may be held at the sole discretion of the Parent and the Borrower, sell participations to one or more banks or other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made entities in or in connection with this Agreement to all or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any a portion of its rights and obligations under this Agreement or any other Loan Document furnished pursuant hereto(including, (iii) such Assignee confirms that it has received a copy of this Agreementwithout limitation, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any a portion of its Obligations, its Commitment, and Commitment or the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsAdvances); provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, the Commitment) shall remain unchanged.
(c) The Lender may, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation pursuant to this Section 7.05, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower or any grant of a security interest in, their Subsidiaries or pledge of, its rights under and interest affiliates furnished to the Lender by or on behalf of the Borrower.
(d) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender(including, including any pledge without limitation, the Advances) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoSystem.
(he) Agent (with respect All amounts payable by the Borrower to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loansthe Lender under Sections 2.07(f), 2.09, 2.10 and 7.05(b) shall be determined as if the Lender had not sold or agreed to sell any participations in the Advances or its Commitment and as if the Lender were funding each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (Advances and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes Commitment in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) way that it is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of funding the portion of such Loans that is Advances and Commitment in which no participations have been sold.
(f) Neither the Parent nor the Borrower may assign any of its rights or obligations hereunder without the prior written consent of the Lender.
(g) Notwithstanding anything in this Section to the contrary, the rights of the Lender to make assignment of, and grant participations in, its Commitment shall be subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity approval of any Participant or any information relating to a Participant's interest in any commitmentsGaming Board, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unrequired by applicable Gaming Laws.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Harrahs Entertainment Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate to one or more banks or other entities all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loan Documents (including the Obligations owed Loans owing to it and its Commitmentsthe Note or Notes held by it); provided however, that: (i) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower assignment shall be required (1) if an Event of Default a constant, and not a varying, percentage of all rights and obligations under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate this Agreement (other than natural persons) of a Lender; provided furtherany Swing Loans), that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be less than $10,000,000 and shall be an integral multiple of $1,000,000 in a minimum amount excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (unless waived by Agent) of $5,000,000 (except such minimum amount assignment shall not apply be to (I) an assignment or delegation by any Lender to any other a Lender, an Affiliate of any such Lender, a Subsidiary of the assigning Lender, or to the bank holding company or a Related Fund Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the U.S. Borrower, the Administrative Agent, the Issuing Banks and the Swing Loan Lenders shall have been notified by the Administrative Agent prior to such Lender, assignment and shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed); provided that no consent of the U.S. Borrower shall be required if an Event of Default under Section 7.01(a) or (IIe) a group of new Lendershas occurred and is continuing; provided further, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment consent of the U.S. Borrower shall be made as an deemed to have been received with respect to any such proposed assignment unless the U.S. Borrower has notified the Administrative Agent in writing of a proportionate part its objection thereto within 10 Business Days of all the assigning Lxxxxx's rights U.S. Borrower’s receipt of written notice thereof, and obligations under this Agreement,
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 105 (Eiv) the parties to each such assignment shall execute and deliver to Agent (the Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording in the Register, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, any Note or Notes subject to such assignment and related information with respect to the Assignee, have been given to Borrowers a processing and Agent (and Revolving Agent if applicable) recordation fee of $3,500 paid by such Lxxxxx and the Assignee,
(F) unless waived by Agent, either the assigning Lender or Assignee has paid the assignee; provided that the Administrative Agent may, in its sole discretion, elect to Agent, for Agent's separate account, a processing waive such recordation fee in the amount case of $3,500any such assignment. Upon such execution, and
(G) the assigneedelivery, if it is not a Lenderacceptance and recording, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender shallassignor thereunder shall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance. Notwithstanding anything to the contrary contained herein except for the conditions set for in clause (iv) of this Section 9.07(a), relinquish its rights any Lender (except with respect a “Granting Lender”) may grant to Sections 10.3 a special purpose funding vehicle (a “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and 16the U.S. Borrower, the option to provide to a Borrower all or any part of a Loan that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be released from liable for any future obligations indemnity or similar payment obligation under this Agreement (and in all liability for which shall remain with the case Granting Lender). In furtherance of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documentsforegoing, such Lender shall cease to be a each party hereto and thereto); provided, that nothing contained herein hereby agrees (which agreement shall release any assigning Lender from obligations that survive the termination of this Agreement) that, including prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such assigning Lender's obligations SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 15 9.07 except for the conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but without the prior written consent of, the U.S. Borrower and Section 17.9(a)the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any Eligible Assignee (consented to by the U.S. Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non- public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This paragraph may not be amended without the written consent of the SPC.
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 106 Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.03 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ; (v) such Assignee assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(c) Each New Lender shall submit a New Commitment Acceptance in accordance with the provisions of Section 2.06(b). Upon the execution, delivery, acceptance and recording of a New Commitment Acceptance, from and after the Increase Date related thereto such New Lender shall be a party hereto and have the rights and obligations of a Lender hereunder having the Commitment specified therein (or such lesser Commitment as shall be allocated to such New Lender in accordance with Section 2.06(b)(vi) or 2.15(d)). By executing and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender has made any representation or warranty, or assumes any responsibility with respect to, (x) any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto or (y) the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New Lender confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.03 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such New Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such New Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such Assignee New Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as a non- fiduciary agent of the required processing feeBorrowers, if applicableshall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance and each New Commitment Acceptance delivered to and FIFTH AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION 107 accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and delivery principal and interest amounts of notice the Loans owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to conclusive and binding for all purposes, absent manifest error, and each Borrower, the extent, but only to the extent, necessary to reflect the addition of the Assignee Administrative Agent and the resulting adjustment of Lenders may treat each Person whose name is recorded in the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Register as a Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only Register shall be derivative through available for inspection by the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents U.S. Borrower or any direct rights as Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect U.S. Borrower with a copy of the ObligationsRegister upon reasonable request. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lendere)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that a Lender sells participations in the Loanit is an Eligible Assignee, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (together with any Revolving Loan Note or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is Notes subject to such participations) (assignment, the "Participant Register"). A Loan (and the registered noteAdministrative Agent shall, if anysuch Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, evidencing (1) accept such Assignment and Acceptance, (2) record the sameinformation contained therein in the Register and (3) may be participated in whole or in part only by registration give prompt notice thereof to the U.S. Borrower. Within five Business Days after its receipt of such participation on notice, the Participant Register (relevant Borrower, at its own expense, shall execute and each registered note shall expressly so provide). Any participation deliver to the Administrative Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitments and/or Loans assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitments and/or Loans retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such surrendered Revolving Loan Note or Notes shall be marked “canceled” and shall be returned promptly to the U.S. Borrower.
(and ii) Upon its receipt of a New Commitment Acceptance executed by a New Lender representing that it is an Eligible Assignee, the registered noteAdministrative Agent shall, if anysuch New Commitment Acceptance has been completed and is in substantially the form of Exhibit C-3 hereto, evidencing (1) accept such New Commitment Acceptance, (2) record the sameinformation contained therein in the Register and (3) may be effected only by give prompt notice thereof to the registration U.S. Borrower. Within five Business Days after its receipt of such participation on notice, the Participant Register. No Lender relevant Borrower, at its own expense, shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except execute and deliver to the extent that Administrative Agent a new Revolving Loan Note to the order of such disclosure is necessary New Lender in an amount equal to establish that the Commitments assumed by it pursuant to such commitment, loan, letter New Commitment Acceptance. Such new Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in substantially the form of credit or other obligation is in registered form unExhibit A-l hereto.
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Assignments and Participations. (a) Except as may otherwise be permitted by Sections 7.3, 8.3, 8.4 and 8.5, (i) Subject the Loan Documents shall be binding upon and inure to the conditions set forth in clause benefit of the Credit Parties, the Lenders, the Swing Line Lender, the Issuing Bank, the Administrative Agent, all future holders of the Loans and the Reimbursement Obligations, and their respective successors and permitted assigns, and (a)(iiii) belowno Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent, the Issuing Bank, the Swing Line Lender may assign and delegate all each Lender.
(b) In addition to its rights under Section 11.6(e), each Lender shall have the right to sell, assign, transfer or negotiate (each an "ASSIGNMENT") one hundred percent, or any portion lesser percentage, of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one any subsidiary or more assignees so long as affiliate of such prospective assignee is an Eligible Transferee (eachLender, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of or to any LenderEligible Assignee, or a Related Fund of such Lender, or provided that (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(Di) each partial assignment such Assignment shall be made as an assignment of a proportionate part constant, and not a varying, percentage of all of the assigning Lxxxxxassignor Lender's rights and obligations under this Agreement,
the Loan Documents, (Eii) the parties to each assignment Revolving Credit Commitment Amount of the Revolving Credit Commitment assigned shall execute be not less than $5,000,000, or the full Revolving Credit Commitment Amount of such assignor Lender's Revolving Credit Commitment, (iii) the Parent Borrower, the Swing Line Lender, the Issuing Bank and the Administrative Agent shall have consented thereto in writing (which consents shall not be unreasonably withheld), PROVIDED, HOWEVER, that such consents shall not be required, (A) in the case of the Swing Line Lender, the Issuing Bank and the Administrative Agent, if such assignee is another Lender, and (B) in the case of the Parent Borrower, if a Default shall have occurred and then be continuing or such assignee is a subsidiary or affiliate of another Lender, and (iv) the assignor Lender and such assignee shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) three copies of an Assignment and Acceptance; providedAcceptance Agreement executed by each of them, that Borrowers and Agent may continue to deal solely and directly along with an assignment fee in the assigning Lender in connection with sum of $3,500 for the interest so assigned to an Assignee until written notice account of the Administrative Agent. Upon receipt of such assignmentnumber of executed copies of each such 117 Assignment and Acceptance Agreement, together with payment instructionsthe assignment fee therefor and the Parent Borrower's, addressesthe Swing Line Lender's, the Issuing Bank's and related information with respect the Administrative Agent's consents to such Assignment, if required, the Administrative Agent shall record the same and execute not less than two copies of such Assignment and Acceptance Agreement in the appropriate place, deliver one such copy to the Assignee, have been given assignor and one such copy to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lenderand deliver one photocopy thereof, shall deliver as executed, to Agent (the Parent Borrower, the Swing Line Lender and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) Issuing Bank. From and after the effective date that Agent receives the executed specified in such Assignment and Acceptance andAgreement, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute be deemed a "Lender" hereunder or and, to the extent provided in such Assignment and Acceptance Agreement, the assignor Lender thereunder shall be released from its obligations under this Agreement and the other Loan Documents. The Administrative Agent shall be entitled to rely upon the representations and warranties made by the assignee under each Assignment and Acceptance Agreement.
(c) In addition to the participations provided for in Section 11.10(a), each Lender may grant participations in all or any part of its rights under the Loan Documents and the Originating to one or more Eligible Assignees, provided that (i) such Lender's obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties to this Agreement and the other Loan Documents for the performance of such obligations, (iii) Borrowersthe Credit Parties, the Administrative Agent, Revolving Agentthe Issuing Bank, the Swing Line Lender and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender sub-participations shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lenderbe permitted, (v) no neither the granting nor the offering of such participation would require that any additional loss, cost or expense be borne by any Borrower at any time or would require any registration or qualification under any applicable federal or state securities laws, and (vi) the voting rights of any holder of any participation shall be sold limited to a natural personthe voting rights of such Lender under Sections 11.1(a), (vib), (c) no and (d).
(d) No Lender shall, as between and among the Credit Parties, the Administrative Agent, the Issuing Bank, the Swing Line Lender and such Lender, as the case may be, be relieved of any of its obligations under the Loan Documents as a result of any Assignment or the granting of any participation in all or any part of its rights under the Loan Documents, except that it shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect relieved of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except obligations to the extent of any such entitlement Assignment of all or any part of its rights and obligations under the Loan Documents pursuant to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementSection 11.6(b).
(fe) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject Subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding11.6(d), any Lender may at any time create a security interest in, or pledge, from time to time assign all or any portion of its rights under and interest in this Agreement the Loan Documents to secure obligations of such Lender, including any pledge in favor of any a Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24Bank, and provided that any such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge assignment shall not release such Lender assignor from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretothereunder.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Administrative Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
(i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Administrative Agent and Administrative Borrower (each such consent of the Administrative Borrower not to be unreasonably withheld or delayed) of:), and
(Aii) all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it with the written consent of the Administrative BorrowerAgent and Administrative Borrower (such consent of the Administrative Borrower not to be unreasonably withheld or delayed); provided, however, that (x) no consent of the Administrative Agent shall be required if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (y) no consent of Administrative Borrower shall be required (1) if an a Specified Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects they object thereto by written notice to the Administrative Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 (or $10,000,000 in the case of any Term Loan or Term Loan Commitment) or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Administrative Agent, for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted HolderSponsor or any of their respective Affiliates, (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
Persons described in this clause (B), or (C) to a Disqualified Institution; provided that, notwithstanding anything contained herein to the amount contrary, (1) if a Specified Event of the Commitments and/or Loans Default has occurred and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each is continuing, any such assignment may be made to a Disqualified Lending Institution and (determined as 2) if a Critical Event of Default has occurred and is continuing, any such assignment may be made to a Disqualified Competitor.
(d) Upon such execution, delivery and acceptance, from and after the effective date the specified in each Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be the date of recordation, (A) the assignee thereunder shall become a “Lender” hereunder and, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender addition to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such date it is recorded in the Register, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender the Administrative Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held by such Lxxxxx(the “Registered Loans”) owing to each Lender from time to time. Other than The entries in connection with an assignment by the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of all this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice. It is intended that the Register be maintained such that the Loans are in “registered form” for the purposes of the Internal Revenue Code.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent pursuant to Section 12.07(b) (which consent of the Administrative Agent must be evidenced by the Administrative Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or any portion amounts capitalized and added to the principal balance of its portion the Loans and/or Commitment reductions made subsequent to the effective date of Loans the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to an Affiliate of such Lender or a Related Fund of such Lender the Administrative Agent).
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice to the extent required such that the Loans are in “registered form” for the purposes of the Internal Revenue Code. It is intended that each Participant Register be maintained such that the Loans are in “registered form” for the purposes of the Internal Revenue Code. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. In no event shall any participation be sold to a Disqualified Institution; provided that, notwithstanding anything contained herein to the contrary, (1) if a Specified Event of Default has occurred and is continuing, any participation may be sold to a Disqualified Lending Institution and (2) if a Critical Event of Default has occurred and is continuing, any participation may be sold to a Disqualified Competitor.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans in which such Participant has an interest, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans in which such Participant has an interest or the fees payable under this Agreement in which such Participant has an interest, or (C) actions directly effecting a release of all or substantially all of the Collateral or any Loan Party (except permitted by the Loan Documents), in each case, excluding any action with respect to the waiver of any Default or Event of Default or obligation of the Borrowers to disclose pay interest to at the Post-Default Rate. The Loan Parties agree that each participant shall be entitled to the benefits of Sections 2.09 and 2.10 with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the identity indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall (i) release such Lender from any of its obligations hereunder or substitute any Participant such pledgee or any information relating assignee for such Lender as a party hereto or (ii) be made to a Participant's interest in any commitmentsDisqualified Institution; provided that, loans, letters of credit or its other obligations under any Loan Document) to any Person except notwithstanding anything contained herein to the extent that contrary, (x) if a Specified Event of Default has occurred and is continuing, any such disclosure pledge or assignment may be made to a Disqualified Lending Institution and (y) if a Critical Event of Default has occurred and is necessary continuing, any such pledge or assignment may be made to establish that such commitment, loan, letter of credit or other obligation is in registered form una Disqualified Competitor.
Appears in 1 contract
Assignments and Participations. (i1) Subject With the prior written consent of Administrative Borrower, which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (A) if an Event of Default has occurred and is continuing, or (B) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, other than a Defaulting Lender and (2) with the conditions set forth prior written consent of Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall not be required in clause connection with an assignment to a Person that is a Lender or an Affiliate (a)(iiother than individuals) belowof a Lender, other than a Defaulting Lender, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; providedhowever, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender Party shall be permitted to become an Assignee) all or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any portion of the foregoing Persons,
(C) the amount of Obligations, the Commitments and/or Loans and the other rights and obligations of the assigning such Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be Documents, in a minimum amount (unless waived by AgentAgent and, so long as no Event of Default shall have occurred and be continuing, Administrative Borrower) of $5,000,000 (except such minimum amount shall not apply to (Ix) an assignment or delegation by any Lender to any other Lender, Lender or an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that Borrowers and Agent may continue to deal solely and directly with the assigning such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Administrative Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
, (Fii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (iii) such assignment is entered into the Register in accordance with Section 13.1(h), and (iv) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, Agent for Agent's separate account, account a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act5,000.
(b) From and after the date that Agent receives notifies the assigning Lender (with a copy to Borrowers) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, and such assignment has been entered into the Register in accordance with Section 13.1(h), (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party or any of its Subsidiaries of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving AgentBorrowers, Borrowersthe Collections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any each Loan Party and its their Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, Borrowers) shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans Revolver Commitment (and the principal amount thereof and stated interest thereonthereon and the portion of principal amount and interest of the Obligations assigned or transferred)) held by such LxxxxxLender (each, a "Registered Loan"). Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans the Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans Revolver Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register. The entries in the Register shall be conclusive and Borrowers, Agent and Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, in the absence of manifest or demonstrable error. Notwithstanding anything to the contrary, any assignment of any Obligation shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by Borrowers, Agent and any Lender (solely with respect to its Obligations and/or Commitment), at any reasonable time and from time to time upon reasonable prior notice. This Section shall be construed so that the Obligations are at all times maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and any related regulations (and any successor provisions).
(i) In the event that a Lender sells participations in the Registered Loan, such LxxxxxLender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "Participant Register"). A Registered Loan (and the registered noteRegistered Note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No .
(j) Agent shall make a copy of the Register (and each Lender shall have any obligation to disclose all or any portion make a copy of the its Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary it has one) available for review by Borrowers from time to establish that such commitment, loan, letter of credit or other obligation is in registered form untime as Borrowers may reasonably request.
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Revolving Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative BorrowerBorrowers; provided, provided that no consent of Administrative Borrower Borrowers shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, (2) in connection with the primary syndication by Xxxxx Fargo of the Commitments (provided that Xxxxx Fargo shall consult with Borrowers in connection with such primary syndication (it being understood that in no event shall Xxxxx Fargo be required to obtain Borrowers’ consent with respect to any assignment made in connection with such primary syndication)), or (23) in connection with an assignment to a Person that is a Revolving Lender or an Affiliate (other than natural persons) of a Revolving Lender; provided further, that Administrative Borrower Borrowers shall be deemed to have consented to a proposed assignment unless it objects they object thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof;
(B) Agent; and
(BC) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Commitments and/or Revolving Loans, Swing Lender, and Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,;
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,;
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I1) an assignment or delegation by any Revolving Lender to any other Lender, an Affiliate of any Revolving Lender, or a Related Fund of such Lender, Revolving Lender or (II2) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),;
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's Lender’s rights and obligations under this Agreement,;
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, provided that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx Revolving Lender and the Assignee,;
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's ’s separate account, a processing fee in the amount of $3,500, ; and
(G) the assigneeAssignee, if it is not a Revolving Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "“Administrative Questionnaire") and all information and other documents required under the Patriot Act”).
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Revolving Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Revolving Lender shall cease to be a party hereto and thereto); provided, provided that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Revolving Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Revolving Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, provided that (i) the Originating Lender shall remain a "“Revolving Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Revolving Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Revolving Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Revolving Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Revolving Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect no participations shall be sold to amounts any “lender”, “secured party” or “agent” under Section 16the Term Loan Credit Agreement unless such Person is a Revolving Lender on the Closing Date, and (viii) all amounts payable by Borrowers hereunder shall be determined as if such Revolving Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Revolving Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Revolving Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Revolving Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Parent, any Loan Party Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Revolving Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such LenderAgreement, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge or grant of a security interest shall release such a Revolving Lender from any of its obligations hereunder or substitute any such pledgee pledge or assignee secured party (or any transferee thereof) for such Revolving Lender as a party heretohereto unless such pledgee or secured party (or transferee) becomes a Revolving Lender hereunder.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, Borrowers) shall maintain, or cause to be maintained, a register (collectively, the "“Register"”) on which it enters the name and address of each Revolving Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such LxxxxxRevolving Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Revolving Lender of all or any portion of its portion of the Loans to an Affiliate of such Revolving Lender or a Related Fund of such Revolving Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Revolving Lender of all or any portion of its Loans to an Affiliate of such Revolving Lender or a Related Fund of such Revolving Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Revolving Lender sells participations in the Registered Loan, such LxxxxxRevolving Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No .
(j) Agent shall make a copy of the Register (and each Revolving Lender shall have make a copy of its Participant Register in the extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
(k) Agent shall use commercially reasonable efforts to promptly notify Borrowers of any obligation changes recorded to disclose the Register. In case of any assignment by a Revolving Lender of all or any portion of its Loans to an Affiliate of such Revolving Lender or a Related Fund of such Revolving Lender, and which assignment is not recorded in the Participant Register (including Register, the identity assigning Lender shall use commercially reasonable efforts to promptly notify Borrowers of any Participant or any information relating changes to the register comparable to the Register. In the event that a Participant's interest Revolving Lender sells participations in any commitmentsRevolving Loans, loans, letters the participating Lender shall use commercially reasonable efforts to promptly notify Borrowers of credit or its other obligations under any Loan Document) changes to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unapplicable Participant Register.
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"), ”) with the prior written consent (each such consent not be unreasonably withheld or delayed; it being understood that, without limitation, Administrative Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, Administrative Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2) in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than natural persons) of a Lender, or a Related Fund of such Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
(B) Agent andAgent, solely in the case of an assignment of Revolving Loans or Revolver CommitmentsSwing Lender, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a and Issuing Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to an Ineligible Institution, a Competitor, or a natural person,
(B) no assignment may be made to a Loan Party or an any Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),;
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's Lender’s rights and obligations under this Agreement,;
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Administrative Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,.
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's ’s separate account, a processing fee in the amount of $3,500, ; and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "“Administrative Questionnaire") and all information and other documents required under the Patriot Act”).
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery Agent’s receipt of notice to the assigning Lender executed Assignment and Acceptance pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to an Ineligible Institution, a Competitor, or a natural person, (vi) no participation shall be sold to a Loan Party or an any Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed to it Term Loans, the Revolving Loans, the Swing Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"the Letters of Credit), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided furtherhowever, that Administrative Borrower shall be deemed to have consented to a proposed (i) any such assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
prior approval of the Administrative Agent and the Borrower, (Aii)(A) no if any such assignment may shall be made to a natural person,
of the assigning Lender's Revolving Credit Outstandings and Revolving Credit Commitments, such assignment shall cover the same percentage of such Lender's Revolving Credit Outstandings and Revolving Credit Commitment and (B) no if any such assignment may shall be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder Lender's Term Loans and under Term Loan Commitment, such assignment shall cover the other same percentage of such Lender's Term Loans and Term Loan Documents subject Commitment, (iii) the aggregate amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the Assignor's entire interest) be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment is delivered being made to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment Lender or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Approved Fund of such Lender, and (iv) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Approved Fund of a Lender, such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be subject to the prior consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that notwithstanding any other provision of this Section 11.2, the consent of the Borrower shall not be required (x) for any assignment occurring when any Event of Default shall have occurred and be continuing, (y) for any assignment by any Affiliate of the Administrative Agent made as an within 30 Business Days after the Closing Date of its Commitments held on the Closing Date and (z) for any assignment to any Lender, any Affiliate of a proportionate part of all Lender or a fund engaged in investing in commercial loans that is advised or managed by any Lender so long as, in each such case, such assignment does not result in any increased cost to the assigning Lxxxxx's rights Borrower under Section 2.14(c) or (d) (Special Provisions Governing Eurodollar Rate Loans) or Section 2.16 (Taxes). Any such assignment need not be ratable as among the Term Loan Facility and obligations under this Agreement,the Revolving Credit Facility.
(Eb) the The parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Administrative Agent, for Agent's separate account, a processing fee its acceptance and recording in the amount of $3,500Register, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, together with any Note (if the assigning Lender's Loans are evidenced by a Note) subject to such assignment. In addition, any Lender thereunder and the or Eligible Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation assuming a Revolving Credit Commitment or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or a Term Loan Commitment in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it Facility Increase shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or execute an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank assumption agreement in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Section 2.18 (h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Datapath Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender No Obligor may assign any of its rights or obligations hereunder or under the Notes without the prior consent of all of the Lenders and delegate the Administrative Agent.
(b) Each Lender may, at any time or from time to time, assign to one or more other Eligible Assignees or other Lenders all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it Loans, its Note, and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee Commitment (each, an "Assignee"), but only with the prior written consent of the Company and the Administrative Agent (each such consent which consents shall not be unreasonably withheld or delayed)); provided that (i) of:
(A) Administrative Borrower; provided, that no such consent of Administrative Borrower by the Company shall be required (1) if an any Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has shall have occurred and is be continuing or at the time of such assignment; (2ii) in connection with an any such partial assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).to
(c) By executing and delivering an Assignment and AcceptanceA Lender may, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time or from time to time, sell or agree to sell to one or more commercial banks, financial institutionsother Persons a participation in all or any part of any Loans held by it, or other Persons in its Commitments, in which event each purchaser of a participation (a "Participant") participating interests shall be entitled to the rights and benefits of the provisions of Sections 9.01(f), 5.05, 5.06 and 12.03 hereof with respect to its participation in all or any portion of its Obligations, its Commitment, such Loans and Commitments as if (and the other rights and interests of that Lender (the "Originating Lender"Company shall be directly obligated to such Participant under such provisions as if) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain such Participant were a "Lender" for all purposes of this Agreement and said Section, but, except for the other Loan Documents and rights of the Participant receiving the participating interest in the ObligationsLenders under Section 4.06(c) hereof, the Commitments, and the shall not have any other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or benefits under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, Note or consent or waiver with respect to this Agreement or of any other Loan Basic Document would (A) extend the final maturity date Participant's rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Lender in favor of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interestParticipant), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all . All amounts payable by Borrowers hereunder the Company to any Lender under Section 5 hereof in respect of the Loans held by it, and its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participations in such participationLoans and Commitments, and as if such Lender were funding each of such Loan and Commitments in the same way that it is funding the portion of such Loan and Commitments in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Basic Document except thatthat such Lender may agree with the Participant that such Lender will not, if amounts outstanding under this Agreement are due and unpaidwithout the consent of the Participant, agree to (i) increase or extend the term, or shall have been declared extend the time or shall have become due and waive any requirement for the reduction or termination, of such Lender's Commitments, (ii) extend any date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fee hereunder payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if Participant, (iii) reduce the amount of its participating any such payment of principal, (iv) reduce the rate at which interest were owing directly is payable thereon, or any fee hereunder payable to it as the Participant, to a Lender under this Agreement. The level below the rate at which the Participant is entitled to receive such interest or fee, (v) increase the rights or reduce the obligations of the Company to prepay the related Loans or (vi) consent to any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under modification, supplement or waiver of this Agreement or any of the other Loan Basic Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired same, under Section 12.04 hereof, requires the applicable participation or the Borrower has specifically consented to such greater entitlementconsent of each Lender.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted by the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under assign and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans and its Note to an Affiliate any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank, and such Loans and Note shall be fully transferrable as provided therein. No such assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Company or any of its Subsidiaries in the possession of such Lender or a Related Fund of such Lenderfrom time to time to assignees and participants (including prospective assignees and participants), and which assignment is not recorded in the Registersubject, the assigning Lenderhowever, on behalf of Borrowers, shall maintain a register comparable to the Registerprovisions of Section 12.13 hereof.
(if) In Anything in this Section 12.06 to the event that a Lender sells participations in contrary notwithstanding, neither the LoanCompany nor any of its Subsidiaries or Affiliates may acquire (whether by assignment, such Lxxxxxparticipation or otherwise), as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No no Lender shall have any obligation assign or participate to disclose all the Company or any portion of the Participant Register (including the identity of its Subsidiaries or Affiliates, any Participant or any information relating to a Participant's interest in any commitments, loans, letters Commitments or Loan without the prior consent of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form uneach Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the terms and conditions set forth in clause (a)(ii) belowof this SECTION 10.02, each Lender shall have the right to assign or sell participations in, at any Lender may assign time or times, the Loan Documents, Revolving Credit Loan, Letter of Credit Obligations and delegate all any Revolving Credit Commitment or of any portion thereof or interest therein, including any Lender's rights, title, interests, remedies, powers or duties thereunder, whether evidenced by a writing or not. Each such assignment by a Lender shall (i) require the consent of its rights and duties under the Loan Documents Borrower (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent which shall not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an unless a Default or Event of Default under Sections 8.1shall have occurred and be continuing, 8.2(a)(i(ii) require the consent of the Administrative Agent (solely with respect to Section 5.1which shall not be unreasonably withheld or delayed), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2iii) in connection with require the execution of an assignment and assumption agreement (an "ASSIGNMENT AGREEMENT") substantially in the form attached hereto as EXHIBIT D and otherwise in form and substance satisfactory to, and acknowledged by, the Administrative Agent; (iv) be a PRO RATA assignment of its Revolving Credit Commitment and its ratable portion of the Revolving Credit Loan, (v) be conditioned on such assignee Lender's representing to the assigning Lender and the Administrative Agent that it is purchasing the portion of the Revolving Credit Loan to be assigned to it for its own account, for investment purposes and not with a Person that is view to the distribution thereto; (vi) if a Lender or partial assignment, be in an Affiliate (amount at least equal to $5,000,000 or, if less, the assigning Lender's entire remaining interest and, after giving effect to any such partial assignment, other than natural personsan assignment of its entire remaining interest, the assigning Lender shall have retained Revolving Credit Loan and/or a Revolving Credit Commitment in an amount at least equal to $5,000,000; and (vii) include a payment to the Administrative Agent of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed an assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in fee of $3,500. In the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is by a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments under this SECTION 10.02, the assignee shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Partyhave, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsthe same rights, addresses, benefits and related information obligations as it would if it were a Lender hereunder. Each assigning Lender shall be relieved of its obligations hereunder with respect to the Assignee, have been given to Borrowers and Agent (and its Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender Credit Commitment or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that Agent receives any assignment will give rise to a direct obligation of Borrower to the executed Assignment assignee and Acceptance and, if applicable, payment of that the required processing fee, (i) the Assignee thereunder assignee shall be a party hereto and, considered to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" ". In all instances, each Lender's liability to make Revolving Credit Advances hereunder shall be several and not joint and shall have be limited to such Lender's Pro Rata Share of the rights and obligations applicable Revolving Credit Advance. In the event any Lender assigns or otherwise transfers all or any part of a Lender under the Loan DocumentsRevolving Credit Note, and (ii) the assigning Lender Borrower shall, to upon the extent that rights and obligations hereunder and under request of the other Loan Documents have been assigned by it pursuant to Administrative Agent or such Assignment and AcceptanceLender, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from execute new Revolving Credit Notes in exchange for the Revolving Credit Notes being assigned. Notwithstanding the foregoing provisions of this SECTION 10.02(A), any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering Lender may at any time pledge or assign all or the remaining any portion of an assigning such Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agenta Federal Reserve Bank; PROVIDED, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; providedHOWEVER, that (i) the Originating no such pledge or assignment shall release such Lender shall remain a "from such Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" 's obligations hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or .
(b) Any participation by a Lender of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all any part of the Collateral or guaranties (except to the extent expressly provided herein or in any of the its Revolving Credit Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation and/or Revolving Credit Commitment shall be sold in an amount at least equal to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party$1,000,000, and (vii) except as otherwise provided below with respect to amounts under Section 16, the understanding that all amounts payable by Borrowers Borrower hereunder shall be determined as if such that Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon that the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights holder of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant participation shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release require such Lender from to take or omit to take any of its obligations action hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unactions directly
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Revolving Loan Commitment and any Revolving Loan made by it with the Loan Documents (including written consent of the Obligations owed to it and its Commitments) to one or more assignees Origination Agent and, so long as such prospective assignee no Event of Default has occurred and is an Eligible Transferee continuing, the Administrative Borrower (each, an "Assignee"), with which consent of the prior written consent Administrative Borrower (each such consent x) shall not be unreasonably withheld or delayeddelayed and (y) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented been given unless an objection is delivered to a proposed assignment unless it objects thereto by written notice to the Administrative Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereofof a proposed assignment is delivered to the Administrative Borrower); and
provided, however, that no written consent of the Origination Agent or the Administrative Borrower shall be required (A) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) Agent and, solely in the case of an if such assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 or a multiple of $500,000 in excess thereof (or the remainder of such Lender’s Commitment and Loans) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000 or a multiple of $500,000 in excess thereof);
(ii) Except as provided in the last sentence of this Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver to the Administrative Agent and the Origination Agent, for the Administrative Agent’s acceptance and the Origination Agent’s consent, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $3,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender), a properly completed and duly executed IRS Form W-9 (or other applicable tax form) and all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act. Notwithstanding anything to the contrary contained in this Section 12.07(c)(ii), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person; provided, however, that (A) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (B) the Collateral Agent may continue to deal solely and directly with such assigning Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(g), (C) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (D) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(f) below; and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to any Loan Party or any Affiliate of a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B); and
(Civ) No assignment may be made (including to any Replacement Lender) without the amount consent of the Commitments and/or Loans Issuing Bank and the other rights Swingline Lender.
(d) Upon such execution, delivery and obligations of acceptance, from and after the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agentand recordation on the Register, (A) the assignee thereunder shall be become a “Lender” hereunder and, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender addition to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(c)(ii) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (collectivelythe “Related Party Register”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) and all other documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the "Register"USA PATRIOT Act, and receipt by the Administrative Agent of its fee pursuant to Section 12.07(c)(ii) on hereof, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which it enters the name and address of each Lender as the registered owner consent of the applicable Loans Agent must be evidenced by such Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal amount thereof balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and stated interest thereonassignee in conjunction with delivery of the assignment to the Administrative Agent) held by such Lxxxxx. Other than in connection with an assignment by and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Each participant in any portion of such Registered Loan shall comply with Section 2.09(d) (it being understood that the documentation required under Section 2.09(d) shall be delivered to the participating Lender).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.07 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth benefit of the Borrower and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that the Borrower may not assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Each Lender may with the written consent of the Borrower (such consent not to be unreasonably withheld, delayed or conditioned and so long as no Event of Default has occurred and is continuing) and each Agent, assign to one or more other lenders or other entities incorporated or formed in (x) Singapore, (y) Luxembourg or (z) any Treaty State (provided that, with respect to sub-clauses (y) and (z) of this clause (a)(ii) belowb), any Lender may assign and delegate such assignee shall meet the requirements of a Treaty Lender), all or any a portion of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely this Agreement with respect to Section 5.1), 8.2(a)(iii), 8.4 all or 8.5 has occurred a portion of its Commitment and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderany Loan made by it; provided further, that Administrative the Borrower shall be deemed to have consented to a proposed any such assignment unless it objects shall object thereto by written notice to the Administrative Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 10 Business Days after having received written notice thereof; and
(B) Agent andprovided, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; providedhowever, that no such written consent of the Borrower, the Collateral Agent or the Administrative Agent shall be required (A) in connection with an any assignment by a Lender to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender or (IIC) a group in connection with any assignment occurring substantially concurrently with or following the arm's length disposition by SEI or any of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part its Affiliates of all the assigning Lxxxxx's rights and obligations under this Agreement,
of its, or their, A Class Shares in IVS to an unrelated third party; further provided that (Ei) the parties to each such assignment shall execute and deliver to the Borrower, the Collateral Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, for its acceptance, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, any promissory note subject to such assignment and related information with respect (ii) no such assignment shall be made to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by AgentHoldings, the assigning Lender Borrower or Assignee has paid to Agentany of their respective Affiliates. Upon such execution, for Agent's separate accountdelivery and acceptance, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least three (3) Business Days after the delivery thereof to the Agents (or such shorter period as shall be agreed to by the Agents and the parties to such assignment), (A) the assignee thereunder shall become a "Lender" hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or any Loan Party of its Subsidiaries or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the required processing feeBorrower, if applicablemaintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitments of, and delivery the principal amount of notice the Loan (and stated interest thereon) owing to each Lender from time to time. The entries in the assigning Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender pursuant hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. This Section 13.1(b12.07(d) shall be construed so that the Loans and Commitments are at all times maintained in "registered form" within the meaning of Sections 163(f), this Agreement shall be deemed to be amended to the extent871(h)(2), but only to the extent, necessary to reflect the addition and 881(c)(2) of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoCode.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (Upon receipt by the Administrative Agent of a "Participant") participating interests in all or any portion of its Obligations, its Commitmentcompleted Assignment and Acceptance, and subject to any consent required from the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the ObligationsBorrower, the Commitments, and Administrative Agent or the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, Collateral Agent pursuant to Section 12.07(b) (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except Agent must be evidenced by the Collateral Agent's execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the extent expressly provided herein or in any Collateral Agent a copy of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, fully executed Assignment and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementAcceptance.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses[reserved].
(g) Any other provision in this Agreement notwithstanding, In the event that any Lender may at any time create a security interest insells participations in the Loan, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee shall, acting for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, a register (collectivelyregister, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans Loan held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Loan that is the subject to such participations) of the participation (the "Participant Register"). A The Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such the Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register, which shall be conclusive absent manifest error. No The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. The Participant Register shall have any obligation to disclose all be maintained in registered form within the meaning of Section 5f.103-1(c) of the Treasury Regulations.
(h) Any Lender who purchases or is assigned or participates in any portion of the Participant Register Loan shall comply with Sections 2.09(e) and 2.09(h).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it); provided that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the identity other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; (iii) a participant shall not be entitled to require such Lender to take or omit to take any Participant action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or the Borrower (except as set forth in Section 10.08 of this Agreement or any information relating other Loan Document); and (iv) the participant is incorporated or formed in (x) Singapore, (y) Luxembourg or (z) any Treaty State and, with respect to sub-clauses (y) and (z) of this clause (i), such participant shall meet the requirements of a Participant's Treaty Lender.
(j) The Borrower agrees that each participant in a Loan that has not become a Lender with respect to the assigned interest shall be entitled to the benefits of Section 2.09 (subject to the requirements and limitations therein, including the requirements under Section 2.09(e) (it being understood that the documentation required from the participant or assignee under Section 2.09(e) shall be provided in the first instance to the Person through whom such participation or assigned interest is held)) to the same extent as if it were a Lender and had acquired the relevant interest in the Loan by assignment under Section 12.07(b); provided that such participant or assignee (i) agrees to be subject to the provisions of Section 2.09 as if it were a Lender that was an assignee under Section 12.07(b) and (ii) shall not be entitled to receive any commitmentsgreater benefit than the applicable Lender who sold the participation would have received, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such entitlement to receive a greater payment results from a Change in Law that such disclosure occurs after the participant acquired the applicable participation.
(k) [reserved].
(l) No assignment or participation may be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person). Agent has no obligation to determine whether any assignee is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unpermitted under the Loan Documents.
Appears in 1 contract
Samples: Financing Agreement (Grindrod Shipping Holdings Ltd.)
Assignments and Participations. (ia) Subject The Loan Documents shall be binding upon and inure to the conditions set forth in clause benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their respective successors and assigns, except that no Credit Party may assign, delegate or transfer any of its rights or obligations under the Loan Documents without the prior written consent of the Administrative Agent and each Lender.
(a)(iib) belowEach Lender shall have the right at any time, any Lender may assign upon written notice to the Administrative Agent of its intent to do so and delegate the payment of a fee (the "Assignment Fee") of $1,500 to the Administrative Agent by the assigning or -------------- assignee Lender, to sell, assign, transfer or negotiate all or any portion part of its such Lender's rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitmentsi) to one or more assignees so long as such prospective assignee is an Eligible Transferee of the other Lenders, (eachii) to one or more of its affiliates or the affiliates or Approved Funds of one or more of the other Lenders, an "Assignee"), (iii) to any Federal Reserve Bank or (iv) with the prior written consent of the Borrower and the Administrative Agent (each such consent which consents shall not be unreasonably withheld or delayed) of:
(A) Administrative , or with respect to the Borrower; provided, that no consent required during the continuance of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1Default), 8.2(a)(iii)to any other bank, 8.4 insurance company, pension fund, mutual fund or 8.5 has occurred and is continuing other financial institution or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided furtherfund, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely which in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any normal course of its Affiliatesbusiness, or any Person whopurchases loans such as the Loans, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to provided that each such assignment sale, -------- assignment, transfer or negotiation pursuant to clause (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agentiv) shall be in a minimum amount (unless waived by Agent) of $5,000,000 1,000,000 (except such minimum or, if less, a Lender's entire Credit Exposure). In addition, during the 30 day period following the Effective Date, assignments made by the Administrative Agent and the Syndication Agent (excluding assignments of Term Loans in an aggregate principal amount equal to the amount of Existing Term Loans held by them on April 20, 1998) shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender be subject to the extent that $1,000,000 minimum size restriction or require payment of the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) Assignment Fee. For each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) assignment, the parties to each such assignment shall execute and deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) for its acceptance an Assignment and Acceptance; providedAcceptance Agreement which the Administrative Agent shall record in a register (the "Register") maintained by the Administrative Agent on behalf of the Borrower, that Borrowers for the recordation of the names and Agent may continue to deal solely addresses of the Lenders and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addressesCommitment of, and related information with respect principal amount of the Loans owing to, each Lender from time to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx time and the Assignee,
(Fregistered owners of the obligation(s) unless waived evidenced by the Note(s). The entries in the Register shall be presumptively correct absent manifest error. Upon such execution, delivery, acceptance and recording by the Administrative Agent, from and after the assigning Lender or Assignee has paid to Agenteffective date specified in such Assignment and Acceptance Agreement, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assigneeassignee thereunder, if it is not already a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights provided in such Assignment and Acceptance Agreement, the assignor Lender thereunder shall be released from its obligations hereunder have been assigned under the Loan Documents. The Borrower agrees upon written request of the Administrative Agent and at the Borrower's expense to it pursuant execute and deliver (i) to such assignee, a Note, dated the date of the assignor's Note subject to such Assignment and AcceptanceAcceptance Agreement, shall be a "Lender" in an aggregate principal amount equal to the Loans assigned to, and shall have the rights and obligations of a Lender under the Loan DocumentsCommitment assumed by, such assignee and (ii) to such assignor Lender, a Note, dated the assigning Lender shall, to date of the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant assignor's Note subject to such Assignment and AcceptanceAcceptance Agreement, relinquish its rights (except with respect in an aggregate principal amount equal to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case balance of an Assignment and Acceptance covering all or the remaining portion of an assigning such assignor Lender's rights Loans and obligations under this Agreement Commitment, if any, and each assignor Lender shall cancel and return to the Borrower its existing Note. Upon any such sale, assignment or other transfer, the Commitments and the other Loan Documents, such Lender Pro Rata Shares set forth in Exhibit A shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive adjusted accordingly by the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Administrative Agent.
(c) By executing and delivering an Assignment and Acceptance, the assigning Each Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided may grant participations in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement all or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any part of its obligations under this Agreement or any other Loan Document furnished pursuant heretoLoans, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents its Note and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, insurance companies, financial institutions, pension funds, mutual funds or other Persons (a "Participant") participating interests funds which in all or any portion the normal course of its Obligationsbusiness purchase loans such as the Loans, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, provided that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement the Loan Documents shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties to the Loan Documents for the performance of such obligations, (iii) Borrowersthe Borrower, Agent, Revolving Agent, the Administrative Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no sub-participations shall be permitted and (v) the voting rights of any holder of any participation shall be limited to decisions that require the consent of all Lenders as set forth in Section 11.1(a). The Borrower acknowledges and agrees that any such participant shall for purposes of Sections 2.8, 2.10, 2.11, and 2.14 be deemed to be a "Lender"; provided, however, the Borrower shall not, at any time, be obligated to pay any participant in any interest of any Lender hereunder any sum in excess of the sum that the Borrower would have been obligated to pay to such Lender in respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b) above or (ii) participation is granted pursuant to subsection (c) above, to any Person that is not a U.S. Person, such Person shall furnish such certificates, documents or other evidence to the Borrower and the Administrative Agent, in the case of clause (i), and to the Borrower and the Lender that sold such participation, in the case of clause (ii), as shall be required by Section 2.8(e).
(e) No Lender shall, as between and among the Borrower, the Administrative Agent, the Syndication Agent, and such Lender, be relieved of any of its obligations under the Loan Documents as a result of any sale, assignment, transfer or negotiation of, or granting of participations in, all or any part of its Loans, its Commitment or its Note, except that a Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except be relieved of its obligations to the extent of any such amendment tosale, assignment, transfer, or negotiation of all or any part of its Loans, its Commitment or its Note pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this Section, any Lender may at any time or from time to time assign or pledge all or any portion of its rights under the Loan Documents to (i) a Federal Reserve Bank or (ii) if such Lender is a fund which in the normal course of its business purchases loans such as the Loans, to its lenders or a trustee under an indenture for the benefit of its creditors, to secure such fund's obligations, provided that any such assignment or pledge shall not release such assignor from its obligations thereunder.
(g) In the event that the Borrower shall request that Lenders enter into any amendment, modification, consent or waiver with respect to this Agreement or of any other Loan Document would Document, which amendment, modification, consent or waiver cannot become effective without the consent of each Lender, and any Lender elects not to enter into such amendment, modification, consent or waiver (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through each such Lender (other than being a waiver of default interest"Dissenting Lender"), or (E) decrease then the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant Borrower shall have the ----------------- right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled upon 10 days' written notice to the benefits of Section 16 (subject Administrative Agent and such Dissenting Lender, to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered require each such Dissenting Lender to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion assign 100% of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect Term Loan Notes at par to Revolving Loans)any Lender or any other financial institution that agrees, in each case as a non-fiduciary agent on behalf of Bxxxxxxxxits sole discretion, to assume such Term Loans and Term Loan Notes. Each such assignment shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans made pursuant to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (Assignment and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (Acceptance Agreement and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together comply with the surrender other terms of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registerthis Section 11.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Term Loan Agreement (Total Renal Care Holdings Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayeddelayed (it being agreed that notwithstanding anything herein, including the proviso set forth below, during the Certain Funds Period the Borrower may withhold such consent in its sole discretion unless a Certain Funds Default is continuing) of:
and, in the case of the Borrower, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i(or during the Certain Funds Period a Certain Funds Default) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be less than £25,000,000 or an integral multiple of £5,000,000 in a minimum amount excess thereof (unless waived by Agent) or at the Borrower’s option, the Sterling Equivalents of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least 25,000,000 and $5,000,000, respectively),;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 9.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a), (1) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or Assignee has 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 9.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 9.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject The Lender may, upon at least 30 Business Days’ notice to the conditions set forth in clause (a)(ii) belowBorrower, any Lender may assign and delegate to one or more Persons all or any portion of its rights and duties obligations under this Agreement (including, without limitation, the Loan Documents (including the Obligations owed owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachthe Note); provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) ofthat:
(Ai) Administrative Borrower; provided, that no consent of Administrative Borrower each such assignment shall be required (1) if to an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.Eligible Assignee;
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Borrower an Assignment and Acceptance, together with, if requested, the Note; provided, that Borrowers and Agent may continue and
(iii) after giving effect to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of each such assignment, together with payment instructions, addresses, and related information with respect the Lender shall continue to hold at any time at least 50.1% of the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the outstanding principal amount of $3,500, the Loan at such time; and
(Giv) prior to the assigneeeffectiveness of the first such assignment, if it is not a Lender, this Agreement shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire have been amended in a form approved by Agent manner reasonably satisfactory to the Borrower and the Lender to provide for a syndicate of lenders in place of the sole lender (with each of the "Administrative Questionnaire"Borrower and the Lender hereby agreeing to negotiate in good faith to effect such an amendment), which amendment shall in any event:
(a) and all information and other documents required under define the Patriot Act.term “Required Lenders” as lenders holding, at any time, more than 50% of the aggregate principal amount of the Loan outstanding at such time;
(b) From provide that waivers, amendments or other modifications of this Agreement requiring consent of all lenders, all affected lenders or otherwise of lenders in excess of those constituting “Required Lenders” will be limited to customary economic matters;
(c) provide for a customary “yank-a-bank” provision and a provision to the effect that any provision of this Agreement may be amended with the consent of the “Required Lenders” if, at the time such amendment becomes effective, each lender hereunder not consenting thereto receives payment in full of the principal of and interest accrued on the loans made and all other amounts owing to it or accrued for its account under this Agreement; and
(d) contain an agreement by the Lender that it will not enter into any agreement or understanding with any other lender hereunder or any Affiliate of any such other lender to the effect that the Lender’s right to approve any waiver, amendment or other modification of this Agreement shall be subject to the consent of any such other lender, and will otherwise retain the sole right to approve any amendment, modification or waiver of any provision of this Agreement on account of its percentage in interest of the outstanding principal amount of the Loan; provided further, however, that no Person to which an assignment is being made in accordance with this Section 8.07(a) shall be entitled to any additional compensation under Sections 2.07, 2.08 and 2.10 in excess of the aggregate amounts payable under such Sections to the Lender prior to the effective date of such Assignment and Acceptance, unless such additional compensation is payable to such Person as a result of a Change in Law. Any Lender that is a Foreign Lender shall not be entitled to the benefits of Section 2.10 unless such Foreign Lender shall have complied with Section 2.10(e). Upon such execution and delivery from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i1) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a the Lender under the Loan Documents, hereunder and (ii2) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, assignor thereunder shall relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and its obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); providedhereto, provided that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations ’s rights under Section 15 Sections 2.07, 2.10 and Section 17.9(a)8.04 shall survive the effective date of such Assignment and Acceptance for the Lender as to matters occurring prior to such effective date.
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto Credit Parties as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the Note, or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Credit Parties or the performance or observance by any Loan Party the Credit Parties of any of its obligations under this Agreement or the Note, or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon Agent, such the assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee appoints and authorizes Agent or Revolving Agent, as if applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and assignee confirms that it is an Eligible Assignee; and
(vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as the Lender.
(c) Within ten Business Days after receipt by the Borrower of an Assignment and Acceptance and executed by the Lender and an assignee representing that it is an Eligible Assignee, the Borrower shall, at its own expense, execute and deliver to such Eligible Assignee in exchange for the Note then outstanding a Lendernew note from the Borrower to the order of such Eligible Assignee in an amount equal to the aggregate principal outstanding of the Loan assumed by it pursuant to such Assignment and Acceptance. Such new note shall be in an aggregate principal amount equal to the aggregate principal amount of the Loan outstanding at the time thereof, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (other than a "Participant"Credit Party or any of its Affiliates) participating interests in or to all or any a portion of its Obligationsrights and obligations under this Agreement (including, its Commitmentwithout limitation, all or a portion of the aggregate outstanding principal amount of the Loan and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsNote); provided, that however, that:
(i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, ;
(ii) the Originating Lender shall remain solely responsible to the Credit Parties for the performance of such obligations, ;
(iii) Borrowers, Agent, Revolving Agent, and the Lenders Lender shall remain the holder of the Note for all purposes of this Agreement;
(iv) the Credit Parties shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement or the Note, or any consent or waiver with respect to, this Agreement or to any other Loan Documentdeparture by the Credit Parties therefrom, except to the extent that such amendment toamendment, waiver or consent would reduce the principal of, or consent interest on, the Loan, or waiver with respect to this Agreement any fees or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder amounts payable hereunder, in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except each case to the extent expressly provided herein subject to such participation, or in postpone any date fixed for any payment of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofinterest on, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest)Loan, or (E) decrease the amount any fees or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all other amounts payable by Borrowers hereunder hereunder; and provided further that the Credit Parties shall not be determined as if such Lender had not sold such participation, except that, if required to pay any additional amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as compensate a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement participant (or the other Loan Documents or any direct rights as to the other LendersLender, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise on behalf of a participant) in respect of the Obligations. No Participant shall have rights and obligations of such participant relating to this Agreement in excess of what the right Credit Parties would otherwise be required to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled pay to the benefits of Section 16 (subject to Lender if the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and participation had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementsold.
(fe) In The Lender may, in connection with any such assignment or assignment, participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee, participant or proposed assignee or participant, any grant information relating to any member of a security interest inthe Group furnished to the Lender by or on behalf of such member of the Group; provided that, prior to any such disclosure, the assignee, participant or pledge of, its rights under and interest proposed assignee or participant shall agree to preserve the confidentiality of any Information received by it from the Lender in accordance with the terms of Section 8.08.
(f) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such the Lender, including including, without limitation, any pledge in favor of any or assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24System; provided that, and such Federal Reserve Bank may enforce no such pledge or assignment of a security interest in any manner permitted under applicable law; provided, that no such pledge shall release such the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such the Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (International Flavors & Fragrances Inc)
Assignments and Participations. (a) The Borrower may not assign its rights or obligations hereunder or under the Notes without the prior consent of all of the Banks and the Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its Commitments (but only with the consent of, in the case of its outstanding Commitments, the Borrower and the Agent, which consent shall not be unreasonably withheld); PROVIDED that (i) Subject no such consent by the Borrower or the Agent shall be required in the case of any assignment to another Bank and no consent by the Borrower shall be required if a Default has occurred and is continuing; (ii) each such assignment shall be in an amount such that, after giving effect to such assignment, the sum of (A) the aggregate amount of the unused Commitments (if the Commitments are then in effect) of each of the assignor Bank and the assignee bank PLUS (B) the aggregate amount of the Loans held by each of the assignor Bank and the assignee bank shall be equal to or greater than $5,000,000 (unless, after giving effect to such assignment and all other such assignments by such assigning Bank occurring simultaneously or substantially simultaneously therewith, such assigning Bank shall hold no Commitments or Loans hereunder); (iii) each such assignment by a Bank of its Revolving Credit Loans, Revolving Credit Note or Revolving Credit Commitment shall be made in such manner so that the same portion of its Revolving Credit Loans, Revolving Credit Note and Revolving Credit Commitment is assigned to the conditions respective assignee; (iv) each such assignment by a Bank of its Term Loans and Term Note shall be made in such manner so that the same portion of its Term Loans and Term Note is assigned to the respective assignee; and (v) each such assignment by a Bank of its PAD Loans of a particular Series or PAD Commitments of a particular Series and PAD Note for PAD Loans of such Series shall be made in such manner so that the same portion of its PAD Loans of such Series and PAD Commitment of such Series and PAD Note for PAD Loans of such Series is assigned to the respective assignee. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Bank) having the Commitment(s) and Loans specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and the Agent), the obligations, rights and benefits of a Bank hereunder holding the Commitment(s) and Loans (or portions thereof) assigned to it (in addition to the Commitment(s) and Loans, if any, theretofore held by such assignee) and the assigning Bank shall, to the extent of CREDIT AGREEMENT ---------------- -113- such assignment, be released from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment the assigning Bank shall pay the Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other Persons a participation in all or any part of any Loan held by it or Loans made or to be made by it, in which event each such participant shall be entitled to the rights and benefits of the provisions of Section 8.01(k) hereof with respect to its participation in such Loan as if (and the Borrower shall be directly obligated to such participant under such provisions as if) such participant were a "Bank" for purposes of said Section, but shall not have any other rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in clause the agreement (a)(iithe "PARTICIPATION AGREEMENT") belowexecuted by such Bank in favor of the participant). All amounts payable by the Borrower to any Bank under Section 5 hereof shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and as if such Bank were funding all of such Loan in the same way that it is funding the portion of such Loan in which no participations have been sold. In no event shall a Bank that sells a participation be obligated to the participant under the Participation Agreement to take or refrain from taking any action hereunder or under such Bank's Note except that such Bank may agree in the Participation Agreement that it will not, without the consent of the participant, agree to (i) the increase or extension of the term, or the extension of the time or waiver of any requirement for the reduction or termination, of such Bank's Commitments, (ii) the extension of any date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fees payable to the participant, (iii) the reduction of any payment of principal thereof, (iv) the reduction of the rate at which either interest is payable thereon or (if the participant is entitled to any part thereof) commitment fee is payable hereunder to a level below the rate at which the participant is entitled to receive interest or commitment fee (as the case may be) in respect of such participation or (v) release any collateral or otherwise terminate any Lien under the Security Documents (other than in connection with the Disposition of Property permitted hereunder or to which the Majority Banks have consented hereunder).
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any Lender Bank may (without notice to the Borrower, the Agent or any other Bank and without payment of any fee)
(i) assign and delegate pledge all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender Notes to any other Lender, an Affiliate of Federal Reserve Bank as collateral security pursuant to Regulation A and CREDIT AGREEMENT ---------------- any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) Operating Circular issued by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Federal Reserve Bank and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under this Agreement and interest its Loans and its Notes to an affiliate of such Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower and/or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.12 hereof.
(f) Anything in this Agreement Section 11.06 to secure obligations of such Lenderthe contrary notwithstanding, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve no Bank may enforce such pledge assign or security participate any interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from Loan held by it hereunder to the Borrower or any of its obligations hereunder Subsidiaries or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, Affiliates without the "Register") on which it enters the name and address prior consent of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterBank.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any portion (but not less than all) of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed Term Loans; provided, however, that (i) if any such assignment shall be of the assigning Lender's Term Loans and Term Loan Commitment, such assignment shall cover the same percentage of such Lender's Term Loans and Term Loan Commitment, (ii) the assigning Lender shall give prompt written notice of the terms of and the parties to it any such assignment, together with copies of all documents required under Section 5.5 of the U.S. Government Guarantee, (iii) the proposed assignee shall provide to the Agent all documentation and its Commitments) certificates as required by the Agent to one or more assignees so long as confirm to the Agent's satisfaction that such prospective proposed assignee is an Eligible Transferee Lender, (eachiv) the consent to such assignment of the Agent, an "Assignee")the Borrower and the Government Guarantor shall have been obtained, with and (v) any Lender assigning its Term Loans and Term Loan Commitments shall assign its ratable portion of the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrowerbenefits under the U.S. Government Guarantee, if any; provided, that no however, (x) that, notwithstanding any other provision of this Section 10.2, the consent of Administrative the Borrower shall not be required (1) if an for any assignment which occurs when any Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has shall have occurred and is be continuing and (y) that the consent of the Government Guarantor shall not be required for any assignment which occurs after all payments have been made under the U.S. Government Guarantee or (2) the U.S. Government Guarantee otherwise shall no longer be in connection with an full force and effect in any respect. Notice in writing to the Agent from the Government Guarantor of its consent to any proposed assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed sufficient evidence of its consent to have consented to a any proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in of the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a LenderGovernment Guarantor.
(iib) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each assignment shall execute and deliver to Agent (the Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsany Note (if the assigning Lender's Term Loans are evidenced by a Note) subject to such assignment. Upon such execution, addressesdelivery, acceptance and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx recording and the Assignee,
(F) unless waived receipt by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing Agent from the assignee of an assignment fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From 3,500 from and after the effective date that Agent receives the executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16those which survive the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents and the Intercreditor Agreement, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement the Loan Documents and the other Loan DocumentsIntercreditor Agreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) By executing The Agent shall maintain at its address referred to in Section 10.8 a copy of each Assignment and delivering Acceptance delivered to and accepted by it and a register for the recording of the names and addresses of the Lenders and the Commitments of and principal amount of the Term Loans owing to each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Loan Parties, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender for all purposes of this Agreement. The Register shall be available for inspection by the Borrower, the Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and AcceptanceAcceptance executed by an assigning Lender and an assignee, the assigning Lender thereunder Agent shall, if such Assignment and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: Acceptance has been completed, (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into accept such Assignment and Acceptance, (ivii) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and record the information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest contained therein in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligationsRegister, (iii) Borrowers, Agent, Revolving Agent, give prompt notice thereof to the Borrower and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date give prompt written notice of the Obligations hereunder in which terms of and parties to any such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release assignment together with copies of all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation documents required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A 5.5 of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unU.S.
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld other lenders or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 other entities all or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement with respect to:
(i) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Collateral Agent and, solely to the extent such assignment is made to a Disqualified Institution and so long as no Event of Default shall have occurred and be continuing, the Administrative Borrower (such Administrative Borrower's consent not to be unreasonably withheld or delayed), and
(ii) all or a portion of its Revolving Credit Commitment and the other Loan DocumentsRevolving Loans made by it with the written consent of each Agent and, solely to the extent such Lender assignment is made to a Disqualified Institution and so long as no Event of Default shall cease have occurred and be continuing, the Administrative Borrower (such Administrative Borrower's consent not to be a party hereto and theretounreasonably withheld or delayed); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive no written consent of the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and AcceptanceCollateral Agent, the assigning Lender thereunder and Administrative Agent or the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in Administrative Borrower shall be required if such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or assignment is in connection with this Agreement or the executionany merger, legalityconsolidation, validitysale, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutionstransfer, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender disposition of all or any substantial portion of its portion of Loans to an Affiliate of such Lender the business or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund loan portfolio of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Loan Agreement (Otelco Inc.)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Term Loan Commitment and the Term Loan Documents (including the Obligations owed to made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Collateral Agent and the Administrative Borrower (each such consent of the Administrative Borrower not to be unreasonably withheld withheld, conditioned or delayed) of:
(A) Administrative Borrower); provided, however, that no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required (1A) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender; provided, further than (y) no written consent of the Administrative Borrower shall be required to the extent an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or at the time of such assignment and (2z) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that the Administrative Borrower shall be deemed to have consented to a proposed any such assignment unless it objects shall object thereto by written notice to the Collateral Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, including the USA PATRIOT Act; and
(iii) No such assignment shall be made to a natural person,
(A) any Loan Party or any of their respective Affiliates or (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least 3 Business Days after the delivery thereof to the extent that Collateral Agent the aggregate amount to be assigned to all date recorded in the Register (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a “Lender” hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectivelythe “Register”) for the recordation of the names and addresses of the Lenders, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (Commitments and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided such participant shall not be entitled to receive any greater payment under these Sections than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(l) Any Lender may at any obligation to disclose time pledge or assign a security interest in all or any portion of the Participant Register its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the identity indebtedness or equity issued under such a transaction) (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any Participant such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with With the prior written consent (each such of Borrower, which consent of Borrower shall not be unreasonably withheld withheld, delayed or delayed) of:
(A) Administrative Borrower; providedconditioned, that no consent of Administrative Borrower and shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or continuing, and (2) in connection with an assignment to a *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender; provided furtherLender and with the prior written consent of Agent, that Administrative Borrower which consent of Agent shall not be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans unreasonably withheld, delayed or conditioned, and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender.
, any Lender may assign and delegate to one or more assignees (ii) Assignments shall be subject to the following additional conditions:
(A) each, an “Assignee”; provided, however, that no assignment may be made to a natural person,
(B) no assignment may be made to Loan Party, or Affiliate of a Loan Party or holder of Term Loan Debt shall be permitted to become an Affiliate of Assignee (other than a Loan Party, any Permitted Holder, any Defaulting Lender party to this Agreement on the date hereof)) all or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any portion of the foregoing Persons,
(C) the amount of Obligations, the Commitments and/or Loans and the other rights and obligations of the assigning such Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (Ix) an assignment or delegation by any Lender to any other Lender, Lender or an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that Borrowers Borrower and Agent Agents may continue to deal solely and directly with the assigning such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
, (Fii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, Agent for Agent's ’s separate account, account a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowersBorrower, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers Borrower hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the *** Certain confidential information has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving AgentBorrower, Borrowersthe Collections of the Loan Parties, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees Each Lender that sells a participating interest shall maintain, or cause to be maintained, a register on which it enters the name and address of each Participant shall be entitled to and the benefits of Section 16 (subject to the requirements principal amount thereof and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its stated interest thereon held by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementParticipant.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party Borrower and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed and, in the case of the Borrower, (A) shall not be required while an Event of Default has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) Subject to the conditions set forth in clause any Defaulting Lender, (a)(iiii) below, any Lender may that has made a demand for payment pursuant to Section 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurodollar Rate Advances or (iv) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to which the Required Lenders have given their consent, such Lender will), assign and delegate to one or more Persons all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Loan Documents (including the Obligations owed Advances owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachit); provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) ofthat:
(A) Administrative Borrower; provided, that no such consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $10,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),1,000,000 in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a), (1) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 8.04(c)) and (3) if any such Eligible Assignee has is not an existing Lender, unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02
(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent demonstrable error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the prior consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 8.07(e); provided that the failure of such Lender to give notice to the Borrower as provided in this Section 8.07(e) shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower (each such which consent shall not be unreasonably withheld or delayed), the Lender shall have the right at any time and from time to time, to assign its Term Loan Commitment and rights hereunder to one or more commercial banks, insurance companies, finance companies, financial institutions, funds that invests in loans or Affiliates of the Lender (other than a competitor of the Borrower) of:
(A) Administrative Borrowereach an “Assignee”); provided, that no consent of Administrative the Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an for any assignment to a Person any Affiliate of the Lender that is a fund which is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (x) the Lender or (y) an Affiliate (other than natural persons) of a entity which administers, advises or manages the Lender; provided further, that Administrative . The Lender may furnish any information concerning the Borrower shall be deemed in its possession from time to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect time to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Actprospective Assignees.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and The Lender shall have the rights unrestricted right at any time and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shallfrom time to time, to assign the extent that Term Loan or any portion thereof and rights and obligations hereunder and under to one or more Assignees. The Lender may furnish any information concerning the other Loan Documents have been assigned by it pursuant Borrower in its possession from time to time to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)prospective Assignees.
(c) By executing and delivering an Assignment and Acceptance, The Lender shall have the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may unrestricted right at any time sell and from time to time, to grant to one or more commercial banks, insurance companies, finance companies, financial institutions, funds that invests in loans or Affiliates of the Lender (other Persons than a competitor of the Borrower) (each, a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, the Lender’s Term Loan Commitment and/or Term Loan and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documentshereunder; provided, provided that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible to the Borrower for the performance of such obligations, the Term Loan Commitment and other obligations under this Agreement and (iii) Borrowers, Agent, Revolving Agent, and the Lenders Borrower shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of Lender may furnish any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or information concerning the Borrower has specifically consented in its possession from time to such greater entitlementtime to prospective Participants.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Loan Agreement (Sevcon, Inc.)
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(a)(iib) below, any Each Lender may (x) with the written consent of the Collateral Agent assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to A-1 Commitment and any Term Loan made by it and its Commitments(y) with the written consent of each Agent, assign to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative BorrowerRevolving Loans made by it; provided, however, that no (i) such assignment shall require the prior consent of the Administrative Borrower (which consent shall be required not (1) if be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender Fortress Credit Corp. or any of its AffiliatesAffiliates or Related Funds), or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(Cii) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (x) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof),
, (Diii) each partial assignment shall be made except as an assignment provided in the last sentence of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Borrower (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Collateral Agent, for the benefit of the Collateral Agent, a processing and directly with recordation fee of $5,000 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignment, together with payment instructions, addresses, Lender or a Related Fund of such Lender) and related information with respect to (iv) no written consent of the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Collateral Agent, the assigning Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent an Affiliate of such Lender, a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent, the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Collateral Agent, the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and theretoAcceptance to the Agents or to any other Person (a “Related Party Assignment”); provided, however, that nothing contained herein shall release any (I) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender from obligations that survive until an Assignment and Acceptance has been delivered to the termination of this AgreementAdministrative Agent for recordation on the Register, including (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender's obligations under Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 15 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 17.9(a)12.07(d) below.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeThe Administrative Agent shall, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), acting solely for this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “Registered Loans”) and Letter of Credit Obligations owing to each Lender from time to time. Subject to the last sentence of this Section 12.07(d), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (collectivelythe “Related Party Register”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent, the "Register"Administrative Borrower or the Collateral Agent pursuant to Section 12.07(b) on (which it enters the name and address of each Lender as the registered owner consent of the applicable Loans Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.
(and the principal amount thereof and stated interest thereonf) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(ig) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of 0, Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that, at the time such participant is claiming benefits pursuant to Section 2.09, such participant shall comply all obligations under Section 2.09 as if it was a Lender thereunder.
(j) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Samples: Financing Agreement (Funko, Inc.)
Assignments and Participations. (i) 1. This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
2. Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment, Term Loan Commitment and any Loans made by it with the Loan Documents written consent of (including i) the Obligations owed to it Agent (which consent of the Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, the Agent may withhold, condition or deny such consent in its sole discretion)) and its Commitments(ii) to one the Administrative Borrower (which consent of the Administrative Borrower (A) shall not be unreasonably withheld, conditioned or more assignees delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such prospective assignee is an Eligible Transferee (each, an "Assignee"consent in its sole discretion), with (B) shall be deemed to have been given by the prior written consent (each Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (C) shall not be unreasonably withheld or delayed) of:
(A) Administrative Borrowerrequired during the continuance of an Event of Default); provided, further, that no written consent of the Agent or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2A) in connection with any assignment by a Lender to the Agent or a Lender, an assignment to a Person that is Affiliate of the Agent or a Lender or an Affiliate (other than natural persons) a Related Fund of the Agent or a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
Lender or (B) Agent and, solely in the case of an if such assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, amalgamation, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of all or any substantial portion of the business or loan portfolio of a Lender.
(ii) 3. Assignments shall be subject to the following additional conditions:
(Aa) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 100,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (A) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $100,000 in excess thereof),;
(Db) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Agent, for its acceptance, an Assignment and Acceptance; provided, that Borrowers and Agent may continue such parties shall deliver to deal solely the Agent, for the benefit of the Agent, a processing and directly with recordation fee of [***] (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid a Related Fund of such Lender), any forms and certificates required pursuant to Agent, for Agent's separate account, a processing fee in the amount of $3,500, Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and
(Gc) the assignee, if it is not a No such assignment shall be made to any Defaulting Lender, shall deliver to Agent any Loan Party, any Permitted Holder (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire or other direct or indirect equity holder of the Parent), any holder of ABL Indebtedness, any holder of Subordinated Indebtedness or any of their respective Affiliates, in a form approved by Agent (each case, without the "Administrative Questionnaire") and all information and other documents required under prior written consent of the Patriot ActAgent.
(b) From 4. Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein . No assignment shall release any assigning Lender from obligations that survive the termination be effective for purposes of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Agreement unless it has been recorded on the Register as provided in this Section.
(c) By 0. Xx executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender the Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes the Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
6. The Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (dthe “Register”) Immediately for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
7. Upon receipt by the Agent of a completed Assignment and Acceptance, the processing and recordation fee of [***], any forms and certificates required pursuant to Section 2.09(e) and all other know-your-customer documentation and information requested by the Agent, and subject to any consent required from the Agent pursuant to Section 12.07(b) (which consent of the Agent must be evidenced by the Agent's receipt execution of an acceptance to such Assignment and Acceptance), the Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the required processing feeLoans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, if applicable, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of notice the assignment to the Agent).
8. If any assignment by any Lender holding any promissory note is made after the issuance of such promissory note, the assigning Lender pursuant shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such promissory note to Section 13.1(bthe Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Administrative Borrower shall issue and deliver a new promissory note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
0. Xx the event that any Lender sells participations in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of such Lender’s rights and obligations under the Loans owning to it, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name and address of each participant and their respective successors and assigns, and the principal amounts (and stated interest thereon) of each Participant’s interest in the Loans or other obligations under the Loan Documents that is the subject of the participation (the ”Participant Register”). The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agent and the Lenders shall treat each Person whose name is recorded in the Participant Register as a Lender hereunder for all purposes of this Agreement. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
10. Any Foreign Lender who purchases or is assigned or participates in any portion of the rights and obligations under this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantocomply with Section 2.09(e).
(e) Any 11. Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in or to all or any a portion of its Obligations, its Commitment, rights and obligations under this Agreement and the other rights Loan Documents (including, without limitation, all or a portion of its Commitments and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsLoans made by it); provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrowers, Agent, Revolving Agent, the Agent and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans , (ivB) no Lender shall transfer action directly effecting an extension of the due dates or grant any participating a decrease in the rate of interest payable on the Loans or the fees payable under which the Participant has the right to approve any amendment tothis Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any consent or waiver with respect to, Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees Parties agree that each Participant participant shall be entitled to the benefits of Section 16 (subject 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the requirements Commitments and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) Loans to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph Section 12.07(b) (b) of Section 16; provided it being understood that such Participant shall not be entitled to receive any greater payment the documentation required under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except 2.09(e) shall be delivered to the extent such entitlement participating Lender, and if additional amounts are required to receive a greater payment results from a Change in Law that occurs after be paid pursuant to Section 2.09, to the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementAdministrative Borrower).
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) 12. Any other provision in this Agreement notwithstanding, any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the or assignment to secure obligations to a Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and loans made to such Federal Reserve Bank may enforce such pledge Lender pursuant to securitization or security interest in any manner permitted under applicable lawsimilar credit facility (a “Securitization”); provided, provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (. The Loan Parties shall cooperate with respect such Lender and its Affiliates to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)effect the Securitization including, in each case without limitation, by providing such information as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to may be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held reasonably requested by such Lxxxxx. Other than Lender in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion rating of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterSecuritization.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (i) Subject to The Lender may, without consent of Xxxxxx or the conditions set forth in clause (a)(ii) below, any Lender may assign Borrower during the continuance of an Event of Default and delegate at all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), other times with the prior written consent (each such consent of Xxxxxx and the Borrower, which consents shall not be unreasonably withheld or delayed) of:
(Aa) Administrative Borrower; providedsell, that no consent assign, transfer and grant an interest in any or all of Administrative Borrower shall be required (1) if an Event the Commitments under any or all of Default the Credit Facilities, the Loans under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred such Credit Facilities and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereofits rights under the Documents; and
(Bb) Agent and, solely grant one or more participations in the case of an assignment of Revolving Loans any or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount all of the Commitments and/or Loans and the other rights and obligations under any or all of the assigning Lender hereunder Credit Facilities, the Loans under such Credit Facilities and its rights under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and AcceptanceDocuments; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).to:
(c) By executing and delivering an Assignment and Acceptance, any Person(s) during the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence continuance of an Event of Default; and
(d) any other financial institution(s) which are resident in Canada for the purposes of the Income Tax Act (Canada), each Participant and in such case the Borrower shall not be deemed under obligation to pay by way of withholding tax or otherwise any greater amount than it would have been obliged to pay if the right Lender had not made such sale, assignment, transfer or grant, and further provided that no sale, assignment, transfer or grant of set off in respect less than all of its participating the Lender’s interest in amounts owing the Commitment(s), the Loans under this Agreement to such Credit Facilities and its rights under the same extent as if Documents shall result in any Person having less than Cdn. $5,000,000.00 of the amount of its participating interest were owing directly to it as a Total Commitment. Upon any such sale, assignment, transfer or grant, the Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have no further obligation hereunder with respect to such interest. Upon any rights under this Agreement such sale, assignment, transfer or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowersgrant, the Collateralgranting Lender, or otherwise in respect of the Obligations. No Participant new Lender, Xxxxxx and the Borrower shall have the right to participate directly in the making of decisions by the Lenders among themselvesexecute and deliver an assignment agreement. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, assign its rights under and interest in this Agreementor obligations hereunder without the prior written consent of the Lender, a Lender may, subject such consent not to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of be unreasonably withheld. Xxxxxx shall not assign its rights under and interest in this Agreement to secure or obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A hereunder without the prior written consent of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoLender.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (a) Each Lender may, with the consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld, conditioned or delayed and, in the case of the Borrower, (i) Subject shall not be required while an Event of Default has occurred and is continuing and (ii) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the conditions set forth in clause Administrative Agent) to (a)(iiA) belowany Defaulting Lender, (B) any Lender may that has made a demand for payment pursuant to Section 2.11 or 2.14, (C) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurodollar Rate Advances or (D) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to which the Required Lenders have given their consent, such Lender will), assign and delegate to one or more Persons all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Loan Documents (including the Obligations owed Advances owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (eachit); provided, an "Assignee")however, with the prior written consent (each such consent not be unreasonably withheld or delayed) ofthat:
(A1) Administrative Borrower; provided, that no such consent of Administrative Borrower shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(2) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(3) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof;
(4) each such assignment is delivered shall be to Agentan Eligible Assignee;
(5) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be in a minimum amount arranged by the Borrower with the approval of the Administrative Agent (unless waived by Agent) of $5,000,000 (except such minimum amount which approval shall not apply to (Ibe unreasonably withheld, conditioned or delayed) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,;
(E6) no Lender shall be obligated to make any such assignment as a result of a demand by the parties Borrower pursuant to each this Section 8.07(a), (I) (except in the case of an assignment of the type described in clause (D) of the first parenthetical clause in this Section 8.07(a) to the extent such Default would no longer be continuing after giving effect to the relevant amendment or waiver) so long as a Default shall execute have occurred and deliver be continuing and (II) unless and until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 8.04(c)) and (III) if any such Eligible Assignee is not an existing Lender, unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent (a processing and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptancerecordation fee of $3,500; provided, however, that Borrowers the Administrative Agent may, in its sole discretion, elect to waive such processing and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(b7) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (6)(III) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; provided, further, that in the event that, in connection with a demand by the Borrower pursuant to this Section 8.07(a), the assignor shall not execute and deliver the relevant Assignment and Acceptance within one Business Day of the required processing feeBorrower’s request, such assignor shall be deemed to have executed and delivered such Assignment and Acceptance. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent demonstrable error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (other than a "Participant"natural person, the Borrower or any of its Affiliates) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the prior consent of, or notice to, the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent would reduce the principal of, or consent stated rate of interest on, the Advances or waiver with respect to this Agreement the stated rate at which any fees or of any other Loan Document would (A) extend the final maturity date of the Obligations amounts payable hereunder are calculated, in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except each case to the extent expressly provided herein subject to such participation, or in postpone any date fixed for any payment of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofinterest on, the interest Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement . Subject to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowersimmediately succeeding paragraph, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant such participant shall be entitled to the benefits of Section 16 (subject to the requirements Sections 2.11 and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) 2.14 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph subsection (ba) of this Section 168.07 (it being understood that the documentation required under Section 2.14(e) shall be delivered to the Lender who sells the participation); provided that such Participant participant (A) agrees to be subject to the provisions of Sections 2.15, 2.20 and 8.05 as if it were an assignee under subsection (a) of this Section 8.07 and (B) shall not be entitled to receive any greater payment under Section 16Sections 2.11 or 2.14, with respect to any participation, than its participating the Lender from whom it acquired the applicable participation would have been entitled to receive, except to unless the extent sale of such entitlement to receive a greater payment results from a Change in Law that occurs after participation is made with the Participant acquired the applicable participation or prior written consent of the Borrower has specifically consented and the Borrower expressly waives the benefit of this provision at the time of such participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to such greater entitlement.
(f) In connection use reasonable efforts to cooperate with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject the Borrower to effectuate the provisions of Section 17.9Sections 2.15, disclose all documents 2.20 and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (8.05 with respect to Term Loans any participant. A participant shall not be entitled to the benefits of Section 2.14 unless the Borrower is notified of the participation sold to such participant and Protective Advancessuch participant agrees, for the benefit of the Borrower, to comply with Sections 2.14(e) and Revolving Agent as though it were a Lender (with respect it being understood that the documentation required under Section 2.14(e) shall be delivered by each participant to Revolving Loansthe participating Lender). Each Lender that sells a participation shall, in each case acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitmentsCommitments, loans, letters of credit Advances or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitmentCommitment, loan, letter of credit Advance or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent demonstrable error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender No Borrower may assign and delegate or transfer any of its rights or obligations under this Agreement without the prior written consent of each Bank.
(b) Each Bank may assign to one or more banks or other entities all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitment and the Loan Documents (including the Obligations owed Advances owing to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrowerit; provided, however, that no consent of Administrative Borrower (i) the assignment shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderuniform, and not a varying, percentage of all of the assigning the Bank's rights and obligations under and in respect of the facility being assigned; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and Revolving Credit Commitment being assigned pursuant to the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall not be less than Five Million Dollars ($5,000,000.00) and shall be an integral multiple of One Million Dollars ($1,000,000.00); (iii) the Borrowers and the Agent shall consent to the assignment, which consent, in a minimum amount (unless waived by Agent) of $5,000,000 either case, shall not be unreasonably withheld (except such minimum amount that no consent by the Borrowers or the Agent shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate be required in the case of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender assignment to another Bank and no consent by the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment Borrowers shall be made as required after an assignment Event of a proportionate part of all the assigning Lxxxxx's rights Default shall have occurred and obligations under this Agreement,
be continuing); and (Eiv) the parties to each the assignment shall execute and deliver to the Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or in the remaining portion form attached hereto as Exhibit "F", together with an assignment fee of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)$2,500.00.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender Bank thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment the representation and Acceptancewarranty that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim, such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to any statements, warranties warranties, or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency sufficiency, or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrowers or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 6.1 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon the Agent, such assigning Lender Bank or any other LenderBank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee appoints and authorizes the Agent or Revolving Agent, as applicable, to take such actions action as the Agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and ; and
(vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderBank.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender Each Bank may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in all or any a portion of its Obligationsrights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, Revolving Credit Commitment and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsAdvances owing to it); provided, however, that (i) each such participation shall be in an amount not less than Five Million Dollars ($5,000,000.00); (ii) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating LenderBank's obligations under this Agreement (including, without limitation, its Revolving Credit Commitment) shall remain unchanged, ; (iiiii) the Originating Lender Bank shall remain solely responsible to the other parties hereto for the performance of such obligations, ; (iiiiv) the Borrowers, Agent, Revolving the Agent, and the Lenders other Banks shall continue to deal solely and directly with the Originating Lender Bank in connection with the Originating LenderBank's rights and obligations under this Agreement Agreement; and (v) the other Loan Documents, (iv) no Lender shall transfer Bank may not agree with the participant to require the participant's consent or grant permit the participant to vote on whether to take or refrain from taking any participating interest under which the Participant has the right action or to approve any amendment toor waiver of any provision of any Loan Document, or any consent or waiver with respect to, this Agreement or any other Loan Documentdeparture by any party therefrom, except to that the extent such amendment toBank may agree with the participant that the Bank will not, or without the consent or waiver with respect vote of the participant, agree to this Agreement (1) increase the Revolving Credit Commitment of such Bank or of subject such Bank to any other Loan Document would additional obligations; (A2) extend any revolving credit or line of credit termination or conversion date affecting the final maturity date of the Obligations hereunder in which such Participant is participating, Bank; (B3) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce interest on, the amount Advances payable to the Bank or any fees or other amounts payable to the Bank; (4) postpone any date for any payment of principal of, or interest on, the interest or fees Advances payable to such Participant through such Lender (the Bank or any fees or other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums amounts payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16Bank; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unor
Appears in 1 contract
Samples: Revolving Line of Credit and Security Agreement (Commercial Net Lease Realty Inc)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Agent and each Lender and any such assignment without the Agents’ and Xxxxxxx’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other Lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
(i) all or a portion of its Commitment and any Loan Documents (including the Obligations owed to made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower (each such which consent shall not be unreasonably withheld withheld, conditioned or delayed) of:), and
(Aii) Administrative Borrower[reserved]; and provided, however, that (x) no written consent of Administrative the Borrower shall be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default under pursuant to Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.19.01(a), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing (f) or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderg); provided further, further that Administrative the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless it objects shall have objected thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the assigning Lender within five (5) 10 Business Days after having received written notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (A) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment),);
(Dii) each partial assignment shall be made Except as an assignment provided in the last sentence of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, for its acknowledgment, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignmentAssumption, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Administrative Agent, for the benefit of the Administrative Agent's separate account, a processing and recordation fee in the amount of $3,5003,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(Giii) the assigneeExcept as expressly provided in Section 12.07(m), if it is not no such assignment shall be made to an Affiliated Lender or to a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Actnatural person.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and, if applicable, payment of Assumption and recordation on the required processing feeRegister, (i) the Assignee assignee thereunder shall be become a party hereto “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Assumption and (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and AcceptanceAssumption, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and AcceptanceAssumption, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, Assumption; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Assumption delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereonthereon).The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) held Upon receipt by the Administrative Agent of a completed Assignment and Assumption and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Assumption), the Administrative Agent shall accept such assignment, and record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the Administrative Agent).
(ih) a A Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations a participation in the a Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name and address of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's ’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other Guarantors (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 (subject to such participant’s compliance with Section 2.09(d), it being understood that the tax documentation required thereby shall be delivered to the participating Lender), Section 2.10 and Section 2.11 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a ”Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization, including by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or the Securitization.
Appears in 1 contract
Assignments and Participations. (i1) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may shall not assign and delegate all or any portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Loan Documents Advances owing to it) except that each Lender may and (including 2) within five days after demand by the Obligations owed Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (iii) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (iv) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all Lenders under a Tranche) or all Lenders (or all Lenders under a Tranche) affected or adversely affected thereby is required and, with respect to any amendment or waiver requiring the consent of all Lenders, as to which the Required Lenders, the Required 364-Day Tranche Lenders, the Required 3-Year Tranche Lenders or the Required 5-Year Tranche Lenders, as applicable, shall have given their consent, such Lender shall, in each case of clauses (1) and its Commitments(2) above, assign to one or more assignees so long as Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it); provided, however, that:
(A) such prospective assignee is an Eligible Transferee (each, an "Assignee"), assignment shall be made with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayeddelayed (it being agreed that notwithstanding anything herein, during the Certain Funds Period, (x) of:
(A) Administrative Borrower; provided, that no the Borrower may withhold such consent in its sole discretion unless such assignment is from a Lender to one or more of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(iits Affiliate(s) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 in which case such consent shall not be unreasonably withheld or 8.5 has occurred delayed by the Borrower) and is continuing or (2y) the Administrative Agent may withhold such consent in its sole discretion in connection with an assignment pursuant to clause (1) above); provided that, in the case of the Borrower only, such consent (A) shall not be required while an Event of Default (or during the Certain Funds Period, a Person that Certain Funds Default) has occurred and is a Lender or an Affiliate continuing, (B) other than natural persons) of a Lender; provided furtherduring the Certain Funds Period, that Administrative Borrower shall be deemed to given if the Borrower shall not have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) objected within five (5) 10 Business Days after having received following its receipt of notice thereof; and
of such assignment and (BC) Agent andother than during the Certain Funds Period, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitments, Revolving Agentany Lender; provided, that no further that, in each case above, notice thereof shall have been given to the Borrower and the Administrative Agent;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Assumption with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) [reserved];
(E) each partial such assignment made as a result of a demand by the Borrower pursuant to this Section 9.07(a)(2) shall be made as either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 9.07(a)(2), (1) unless waived by Agentand until such Lender shall have received one or more payments in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or Assignee has 9.04(c)) and (2) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
(G) the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 9.07(a)(2), the Borrower) shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Assumption and, if such assignment does not occur as a result of a demand by the Borrower pursuant to this Section 9.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 9.07(a)), a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and provided, further that in the event that, in connection with a copy demand by the Borrower pursuant to Revolving this Section 9.07(a)(2), the assignor shall not execute and deliver the relevant Assignment and Assumption within one Business Day of the Borrower’s request, such assignor shall be deemed to have executed and delivered such Assignment and Assumption. The assignee, if it is not a Lender, shall deliver to the Administrative Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") . Upon such execution, delivery, acceptance and all information and other documents required under the Patriot Act.
(b) From recording, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and, if applicable, payment of the required processing feeAssumption, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and AcceptanceAssumption, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and AcceptanceAssumption, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 9.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance Assumption covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and AcceptanceAssumption, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and AcceptanceAssumption, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, Assumption;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Assumption has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 9.02
(a) a copy of each Assignment and Assumption delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees or any other amounts payable to such Participant through such Lender hereunder are calculated (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement any amendment to the same extent as if the amount definition of its participating interest were owing directly “Default Interest” or to it as a Lender under this Agreement. The rights of waive any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect obligation of the Obligations. No Participant shall have the right Borrower to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loanspay Default Interest), in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 9.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information received by it from such Lender as more fully set forth in Section 9.08; provided further that, each Lender acknowledges, and shall cause each assignee, participant or proposed assignee or participant to acknowledge, that such disclosure is restricted by the Takeover Rules and the Takeover Panel and that Section 9.08 is subject to those restrictions.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject The Lender may, without the consent of the Borrower, assign to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate another Person all or any a portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement (including, without limitation, all or a portion of the Commitment, the Advance and the other Loan Documents, such Lender shall cease to be a party hereto and theretoNote); provided, however, that nothing contained herein no such consent by the Borrower shall release be required in the case of any assigning Lender from obligations that survive assignment to a Subsidiary or Affiliate of the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(cb) By executing and delivering an Assignment and Acceptance, the assigning The Lender thereunder and the Assignee thereunder confirm may sell participations to and agree with each one or more banks or other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made entities in or in connection with this Agreement to all or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any a portion of its rights and obligations under this Agreement or any other Loan Document furnished pursuant hereto(including, (iii) such Assignee confirms that it has received a copy of this Agreementwithout limitation, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any a portion of its Obligations, its Commitment, the Advance and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsNote); provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, its Commitment hereunder) shall remain unchanged.
(c) Upon receiving Borrower's written consent, (ii) which shall not be unreasonably withheld, the Originating Lender shall remain solely responsible for the performance of such obligationsmay, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation pursuant to this Section 7.5, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower or any grant Subsidiaries or Affiliates thereof furnished to the Lender by or on behalf of a security interest in, or pledge of, its rights under and interest the Borrower.
(d) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender(including, including any pledge without limitation, the Advance and the Note) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party heretoSystem.
(he) Agent (with respect All amounts payable by the Borrower to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loansthe Lender under Sections 2.7(d), 2.9, 2.10 and 7.4(b) shall be determined as if the Lender had not sold or agreed to sell any participations in the Advance or the Note or its Commitment and as if the Lender were funding each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (Advance and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes Commitment in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) way that it is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of funding the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (Advance and the registered note, if any, evidencing the same) may be participated Commitment in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall which no participations have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unbeen sold.
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement shall be binding upon and inure to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any benefit of the foregoing Persons,
(C) the amount of the Commitments and/or Loans parties hereto and the other rights their respective successors and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Actpermitted assigns.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish The Company may not assign its rights (except with respect to Sections 10.3 and 16) and be released from any future or obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and without the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance prior consent of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral Bank Parties.
(c) A Bank may assign its Loans, its Notes, its rights or guaranties (except to obligations in respect of Letters of Credit or its Commitment but only with the extent expressly provided herein or in any prior consent of the Loan Documents) supporting Company, the Administrative Agent and the Letter of Credit Agent, provided that no such consent of the Company shall be required after the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon in full (by acceleration or otherwise) and further provided, unless the occurrence of an Event of DefaultAdministrative Agent otherwise consents, each Participant shall be deemed to have the right partial assignment of set off a Bank's Loans, Notes, rights or obligations in respect of its participating interest Letters of Credit or Commitments shall (i) be in amounts owing under this Agreement to the same extent as if the amount of $5,000,000 or a higher integral multiple of $1,000,000 and (ii) consist of a ratable proportion of each of its participating interest were owing directly Loans, Notes, rights and obligations in respect of Letters of Credit and Commitments. The Company shall not unreasonably withhold its consent to any request by a Bank to make an assignment pursuant to the foregoing sentence. Upon notice to the Company and the Administrative Agent of an assignment permitted by the preceding sentence (which notice shall identify the assignee, the amount of the assignor's Loans and Commitments and obligations in respect of Letters of Credit assigned in detail reasonably satisfactory to the Administrative Agent), and upon the effectiveness of any other assignment consented to by the Company, the Administrative Agent and the Letter of Credit Agent, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Company, the Administrative Agent and the Letter of Credit Agent), the obligations, rights and benefits of a Bank hereunder holding the Loans and Commitments and obligations in respect of Letters of Credit (or portions thereof) assigned to it as a Lender (in addition to the Loans and Commitments and obligations in respect of Letters of Credit, if any, theretofore held by such assignee) and the assigning Bank shall, to the extent of such assignment, be released from the Commitments and obligations in respect of Letters of Credit (or portions thereof) so assigned. The assignor Bank shall pay an assignment fee of $2500 to the Administrative Agent at the time of each assignment or partial assignment under this Agreement. The rights subsection (c).
(d) A Bank may sell to one or more other Persons (herein called "____________ Participants") a participation in all or any part of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and Loans or Letter of Credit Liabilities held by it, provided that no Participant shall have any rights under or with respect to this Agreement or the Agreement, any other Loan Documents Document or any direct Reimbursement Obligation of the Company (a Participant's rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise against such Bank in respect of the Obligations. No Participant shall have the right such participation to participate directly be those set forth in the making agreement (in this section the "_______________________ Participation Agreement") executed by such Bank in favor of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements Participant), and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant Bank shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant relieved of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder to the other parties hereto. All amounts payable by the Company to any Bank hereunder (including under Section 5 hereof) shall be determined as if such Bank had not sold any participations and as if such Bank were funding each Loan and Letter of Credit Liability in which participations have been sold in the same way that it is funding the portion of such Loan in which no participations have been sold. In no event shall a Bank that sells a participation be or substitute become obligated to the Participant under the Participation Agreement to take or refrain from taking any action hereunder or under any other Loan Document (including granting approval of any amendment or waiver) except that such Bank may agree in the Participation Agreement that it will not, without the consent of the Participant, agree to (i) the extension of any date fixed for the payment of principal of or interest on or other amount payable with respect to such Bank's Loans or Letter of Credit Liabilities, (ii) the reduction of any such pledgee payment, or assignee for (iii) the reduction of the rate at which either interest is payable thereon or (if the Participant is entitled to any part thereof) fees are payable hereunder to a level below the rate at which the Participant is entitled to receive interest or fees in respect of such Lender as a party heretoparticipation.
(he) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued In addition to the designated assignee(s) or transferee(s). Prior to assignments and participations permitted under the registration foregoing provisions of assignment or sale of this Section 11.6, any Loan (Bank may assign and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of pledge all or any portion of its Loans and its Notes to an Affiliate of any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular issued by such Lender or a Related Fund of Federal Reserve Bank. No such Lender, and which assignment is not recorded in the Register, shall release the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterBank from its obligations hereunder.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Crown Central Petroleum Corp /Md/)
Assignments and Participations. (a) The Borrower may not assign its rights or obligations hereunder or under the Notes without the prior consent of all of the Banks and the Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its Commitments (but only with the consent of, in the case of its outstanding Commitments, the Borrower and the Agent, which consent shall not be unreasonably withheld); PROVIDED that (i) Subject no such consent by the Borrower or the Agent shall be required in the case of any assignment to another Bank and no consent by the Borrower shall be required if a Default has occurred and is continuing; (ii) each such assignment shall be in an amount such that, after giving effect to such assignment, the sum of (A) the aggregate amount of the unused Commitments (if the Commitments are then in effect) of each of the assignor Bank and the assignee bank PLUS (B) the aggregate amount of the Loans held by each of the assignor Bank and the assignee bank shall be equal to or greater than $5,000,000 (unless, after giving effect to such assignment and all other such assignments by such assigning Bank occurring simultaneously or substantially simultaneously therewith, such assigning Bank shall hold no Commitments or Loans hereunder); (iii) each such assignment by a Bank of its Revolving Credit Loans, Revolving Credit Note or Revolving Credit Commitment shall be made in such manner so that the same portion of its Revolving Credit Loans, Revolving Credit Note and Revolving Credit Commitment is assigned to the conditions respective assignee; (iv) each such assignment by a Bank of its Term Loans and Term Note shall be made in such manner so that the same portion of its Term Loans and Term Note is assigned to the respective assignee; and (v) each such assignment by a Bank of its PAD Loans of a particular Series or PAD Commitments of a particular Series and PAD Note for PAD Loans of such Series shall be made in such manner so that the same portion of its PAD Loans of such Series and PAD Commitment of such Series and PAD Note for PAD Loans of such Series is assigned to the respective assignee. Upon execution and delivery by the assignee to the Borrower and the Agent of an instrument in writing pursuant to which such assignee agrees to become a "Bank" hereunder (if not already a Bank) having the Commitment(s) and Loans specified in such instrument, and upon consent thereto by the Borrower and the Agent, to the extent required above, the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Borrower and the Agent), the obligations, rights and benefits of a Bank hereunder holding the Commitment(s) and Loans (or portions thereof) assigned to it (in addition to the Commitment(s) and Loans, if any, theretofore held by such assignee) and the assigning Bank shall, to the extent of CREDIT AGREEMENT such assignment, be released from the Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment the assigning Bank shall pay the Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other Persons a participation in all or any part of any Loan held by it or Loans made or to be made by it, in which event each such participant shall be entitled to the rights and benefits of the provisions of Section 8.01(k) hereof with respect to its participation in such Loan as if (and the Borrower shall be directly obligated to such participant under such provisions as if) such participant were a "Bank" for purposes of said Section, but shall not have any other rights or benefits under this Agreement or any Note (the participant's rights against such Bank in respect of such participation to be those set forth in clause the agreement (a)(iithe "PARTICIPATION AGREEMENT") belowexecuted by such Bank in favor of the participant). All amounts payable by the Borrower to any Bank under Section 5 hereof shall be determined as if such Bank had not sold or agreed to sell any participations in such Loan and as if such Bank were funding all of such Loan in the same way that it is funding the portion of such Loan in which no participations have been sold. In no event shall a Bank that sells a participation be obligated to the participant under the Participation Agreement to take or refrain from taking any action hereunder or under such Bank's Note except that such Bank may agree in the Participation Agreement that it will not, without the consent of the participant, agree to (i) the increase or extension of the term, or the extension of the time or waiver of any requirement for the reduction or termination, of such Bank's Commitments, (ii) the extension of any date fixed for the payment of principal of or interest on the related Loan or Loans or any portion of any fees payable to the participant, (iii) the reduction of any payment of principal thereof, (iv) the reduction of the rate at which either interest is payable thereon or (if the participant is entitled to any part thereof) commitment fee is payable hereunder to a level below the rate at which the participant is entitled to receive interest or commitment fee (as the case may be) in respect of such participation or (v) release any collateral or otherwise terminate any Lien under the Security Documents (other than in connection with the Disposition of Property permitted hereunder or to which the Majority Banks have consented hereunder).
(d) In addition to the assignments and participations permitted under the foregoing provisions of this Section 11.06, any Lender Bank may (without notice to the Borrower, the Agent or any other Bank and without payment of any fee)
(i) assign and delegate pledge all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender Notes to any other Lender, an Affiliate of Federal Reserve Bank as collateral security pursuant to Regulation A and CREDIT AGREEMENT any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) Operating Circular issued by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Federal Reserve Bank and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under this Agreement and interest its Loans and its Notes to an affiliate of such Bank. No such assignment shall release the assigning Bank from its obligations hereunder.
(e) A Bank may furnish any information concerning the Borrower and/or any of its Subsidiaries in the possession of such Bank from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 11.12 hereof.
(f) Anything in this Agreement Section 11.06 to secure obligations of such Lenderthe contrary notwithstanding, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve no Bank may enforce such pledge assign or security participate any interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from Loan held by it hereunder to the Borrower or any of its obligations hereunder Subsidiaries or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, Affiliates without the "Register") on which it enters the name and address prior consent of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterBank.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and the Administrative Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) of the Administrative Agent and the Administrative Borrower; provided, however, that (i) no written consent of the Administrative Agent or the Administrative Borrower shall be required (1A) in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (ii) the written consent of the Administrative Borrower (A) shall not be unreasonably withheld, conditioned or delayed, (B) shall not be required upon the occurrence and during the continuance of an Event of Default under Sections 8.1, 8.2(a)(iand (C) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto given if not denied by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Borrower within five (5) Business Days after having received notice thereof; and
(B) Agent of the date of the request therefor and, solely in the case of an assignment of Revolving Loans or Revolver Commitmentswith respect to any denial, Revolving Agent; shall be accompanied by a written explanation thereof, and provided, further, that no such the Administrative Borrower’s consent shall not be required in connection with an assignment during the 60 days following the Effective Date for assignments to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderlenders disclosed and reasonably satisfactory to the Administrative Borrower prior to the Effective Date.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $1,000,000 (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $1,000,000);
(ii) The parties to each such assignment may shall execute and deliver to the Administrative Agent (and the Administrative Borrower, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and, if the assignee is not an existing Lender hereunder, shall provide the Administrative Agent a W-9 (or other applicable tax forms), with all documentation and other information with respect to the assignee that is required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including, without limitation, the Anti-Money Laundering and Anti-Terrorism Laws; and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted HolderHolder (or other equity holder of DBM) or any of their respective Affiliates, (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
Persons described in this clause (B), (C) except during the amount existence of a Specified Event of Default, a Specified Disqualified Institution (it being understood that assignments to Specified Disqualified Institutions may be made during the existence of a Specified Event of Default), or (D) except during the existence of an Event of Default, without the consent of the Commitments and/or Loans Administrative Borrower, to a Disqualified Institution (other than Specified Disqualified Institutions) (it being understood that assignments to Disqualified Institutions (other than the Specified Disqualified Institutions) may be made during the existence of an Event of Default).
(d) Upon such execution, delivery and acceptance, from and after the other rights recordation date specified in each Assignment and obligations Acceptance (for the avoidance of the assigning Lender hereunder and under the other Loan Documents subject doubt, to each such assignment (determined as of be the date the Assignment and Acceptance with respect to such assignment is delivered to Agentrecorded in the Register), (A) the assignee thereunder shall be become a "Lender" hereunder and, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender addition to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender the Administrative Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as an agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to it and a register (collectively, the "Register") on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held by such Lxxxxx(the "Registered Loans") owing to each Lender from time to time. Other than The entries in connection with an assignment by the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of all this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, the Administrative Agent shall record the information contained therein in the Register (as adjusted to reflect any principal payments on or any portion amounts capitalized and added to the principal balance of its portion the Loans and/or Commitment reductions made subsequent to the effective date of Loans to an Affiliate of such Lender or a Related Fund of such Lender the applicable assignment, as confirmed in writing by the corresponding assignor and assignee).
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Administrative Agent shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting solely for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any obligation portion of such Registered Loan shall comply with Section 2.09 (it being understood that with respect to disclose a participation, the documentation required under Section 2.09(f) shall be delivered to the participating Lender).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document) and (iv) no such participation shall be made to a Loan Party, any Permitted Holder (or other equityholder of DBM) or any of their respective Affiliates or, except during the existence of an Event of Default, without the consent of Administrative Borrower, a Disqualified Institution (it being understood that participations to Disqualified Institutions may be made during the existence of an Event of Default). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans (subject to the requirements and limitations therein, including the requirements under Section 2.09(f)) to the same extent as if it was a Lender and had acquired its interest by assignment pursuant this Section; provided that such participant (A) agrees to be subject to the provisions of Section 2.12; and (B) shall not be entitled to receive any greater payment under Section 2.09 or 2.10, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the participant acquired the applicable participation.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed) of:
delayed and, in the case of the Borrower, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.10 or 2.13, (iii) any Lender that has asserted pursuant to Section 2.07(b) or 2.11 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitments, Revolving any Lender; provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a), (1) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.10, 2.13 or Assignee has 8.04(c)) and (3) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (F)(3) of this Section 8.07(a)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) such Assignee assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02
(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 8.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an a Default or Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andAgent, solely in Swing Lender, and Issuing Bank; provided that the case consent of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent Swing Lender and Issuing Bank shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) for assignments of a Lenderthe FILO Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to (i) a Competitor, unless an Event of Default has occurred and is continuing under Section 8.1, 8.4 or 8.5, or (ii) a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (or the remainder of such Xxxxxx’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's Xxxxxx’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx Xxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's ’s separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "“Administrative Questionnaire"”), and.
(H) and all information and other documents required under if the Patriot ActFILO Term Loan has not been prepaid in full pursuant to Section 2.4(d)(ii), the Assignee, if it is not a Lender, shall deliver to Agent a joinder to the Agreement Among Lenders in a form approved by Agent.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Revolving Credit Lender may sell, transfer, negotiate or assign and delegate to one or more Eligible Assignees all or any a portion of its rights and duties under the Loan Documents obligations hereunder (including all of its rights and obligations with respect to the Obligations owed to it Revolving Loans, the Swing Loans and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"the Letters of Credit), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, however, that no consent of Administrative Borrower (i) if any such assignment shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred the assigning Revolving Credit Lender’s Revolving Credit Outstandings and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Credit Commitments, such assignment shall cover the same percentage of such Revolving Agent; providedCredit Lender’s Revolving Credit Outstandings and Revolving Credit Commitments, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the aggregate amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event (if less than the assignor’s entire interest) be less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof, except, in either case, (A) with the consent of the Borrower and the Administrative Agent or (B) if such assignment is delivered being made to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment Lender or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Approved Fund of such Lender and (iii) if such Eligible Assignee is not, prior to the date of such assignment, a Lender or an Affiliate or Approved Fund of a Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be subject to the prior consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld or delayed); and provided, further, that, notwithstanding any other provision of this Section 13.2, the consent of the Borrower shall not be required (x) for any assignment occurring when any Event of Default shall have occurred and be continuing and (y) for any assignment by any Affiliate of the Administrative Agent made as an assignment within 15 Business CREDIT AGREEMENT CONSTAR INTERNATIONAL INC. Days after the Closing Date of a proportionate part its Revolving Credit Commitment held on the Closing Date; and provided, further, that, notwithstanding any other provision of all the assigning Lxxxxx's this Section 13.2, in no event shall any Revolving Credit Lender sell, transfer, negotiate or assign (including by way of selling participations or entering into total return swaps) any of its rights and obligations under this Agreement,hereunder to any Loan Party or any of their Affiliates.
(Eb) the The parties to each such assignment shall execute and deliver to Agent (the Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructionsany Revolving Credit Note (if the assigning Revolving Credit Lender’s Loans are evidenced by a Revolving Credit Note) subject to such assignment. Upon the execution, addressesdelivery, acceptance and related information with recording of any Assignment and Acceptance and, other than in respect of assignments made pursuant to the AssigneeSection 2.17 (Substitution of Lenders) and Section 13.1(c) (Amendments, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by AgentWaivers, Etc.), the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From 3,500 from and after the effective date that Agent receives the executed specified in such Assignment and Acceptance and, if applicable, payment of the required processing feeAcceptance, (i) the Assignee assignee thereunder shall be become a party hereto and, to the extent that rights and obligations hereunder under the Loan Documents have been assigned to it such assignee pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Revolving Credit Lender under the Loan Documentsand, if such Revolving Credit Lender were an Issuer, of such Issuer hereunder and thereunder, (ii) the assigning Lender Revolving Credit Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notification in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents this Agreement have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16for those surviving the payment in full of the Obligations) and be released from any future its obligations under this Agreement the Loan Documents, other than those relating to events or circumstances occurring prior to such assignment (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Revolving Credit Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Revolving Credit Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes The Administrative Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable at its address referred to the Register.
in Section 13.8 (i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (a) Lender may from time to time, without the consent of Borrower or Guarantor, sell, transfer, pledge, assign, convey or syndicate the Note (or if there is more than one note, some or all of the notes), the Loan and the Loan Documents (or any interest therein), and any and all servicing rights with respect thereto, and may grant participations in the Loan, delegate its duties and obligations under the Loan and the Loan Documents, split the Loan into multiple parts, or the Note into multiple component notes or tranches or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in rated or unrated public offerings or private placement. In connection with any such sale, transfer, assignment, conveyance, participation, delegation, syndication, splitting or securitization, Lender may, acting for this purpose as an agent of Borrower, maintain at its offices a register for the recordation of the names and addresses of Lender's participants or assignees, and the amount and terms of Lender's sales, transfers, assignments, conveyances and participations including specifying any such participant's or assignee's entitlement to payments of principal and interest, and any payments made, with respect to each such sale, transfer, assignment, conveyance or participation.
(b) Without limiting the generality of the foregoing or Lender's other rights under this Agreement or other Loan Documents, Lender in its sole and absolute discretion, shall have the right at any time to require Borrower to execute and deliver "component" notes (including senior and junior notes), which notes may (i) Subject be paid in such order of priority as may be designated by Lender, and (ii) bear interest at rates different than the Interest Rate, provided that (A) the aggregate principal amount of such "component" notes shall equal the outstanding principal balance of the Loan immediately prior to the conditions set forth creation of such "component" notes, (B) the weighted average interest rate of all such "component" notes shall on the date created equal the Interest Rate which was applicable to the Loan immediately prior to the creation of such "component" notes, (C) the debt service payments on all such "component" notes shall on the date created equal the debt service payments which were required under this Agreement immediately prior to the creation of such component notes and (D) the other terms and provisions of each of the "component" notes shall be otherwise identical in clause (a)(ii) belowsubstance and substantially similar in form to the Loan Documents. Borrower, at Lender's expense shall cooperate with all reasonable requests of Lender in order to establish the "component" notes and shall execute and deliver such documents in addition to the component notes as shall reasonably be required by Lender, including amendments to the Security Instrument, any financing statements or other security documents necessary to evidence the component notes and the appointment of any agent for the holders of such notes (each, a "Holder") under the Co-Lender Agreement (defined below in subsection Section 9.1(d) in connection therewith, all in form and substance reasonably satisfactory to Lender including, without limitation, amendments to the Loan Documents and the severance of security documents if requested. In the event Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such request by Lender, Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, Borrower ratifying all that such attorney shall do by virtue thereof.
(c) If at any time the Loan is evidenced by more than one Note, Borrower acknowledges that the obligations of any Holder to make advances or disbursements under any Note or perform any other obligations under this Agreement or the other Loan Documents shall be several and not joint, and the obligations of Borrower to any Holder shall not be reduced, discharged or released as a result of the failure of any other Holder to perform its obligations under this Agreement or the other Loan Documents. Borrower hereby waives any existing or future right of offset, claim or defense against any Holder arising out of the failure of any other Holder to make any disbursements hereunder or perform any other obligations of such Holder under this Agreement or the other Loan Documents.
(d) At the option of Lender, the Loan or any portion thereof may be serviced by Lender, its Affiliate or a servicer selected by Lender ("Servicer") and Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers administrative responsibilities under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender Servicer pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee a co-lender and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender servicing agreement (the "Originating LenderCo-Lender Agreement") hereunder among the Holders and Servicer. Lender will notify Borrower of the appointment of a Servicer, unless the Servicer is Lender. Servicer shall be entitled to reimbursement of costs and expenses as and to the same extent (but without duplication) as Lender is entitled thereto under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes applicable provisions of this Agreement and the other Loan Documents and Documents. To the Participant receiving the participating interest extent provided in the ObligationsCo-Lender Agreement, Servicer shall have the right to exercise all rights of Lender and enforce all obligations of Borrower pursuant to the provisions of this Agreement, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement Note and the other Loan Documents. The rights and obligations of Holders inter se shall be governed by the Co-Lender Agreement, (iv) no including the priority of payments. The Co-Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment toAgreement may provide that Lender, Servicer or any consent Holder or waiver with respect tocustodian appointed by the Holders shall be the agent of the Holders for purposes of holding the collateral for the Loan and enforcing the liens created by the Loan Documents, this Agreement or any other Loan Document, except and Borrower will execute such amendments to the extent Loan Documents as may be necessary or desirable to effectuate and acknowledge the appointment of such amendment toagent. Neither Borrower, Guarantor, any Environmental Indemnitor nor any Person claiming by or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in through any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation foregoing shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights third party beneficiary of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall agreement referred to in this Section 9.1(d) or have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementthereof.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the consent of (x) the Borrower (A) prior written consent to the funding of the Advances on the Closing Date, in the Borrower’s sole discretion (each provided that such consent shall be deemed to have been given with respect to any Person identified to the Administrative Agent in writing by the Borrower prior to the Effective Date (the “Pre-Approved Lenders”)) and (B) after the funding of the Advances on the Closing Date, such consent not to be unreasonably withheld, and (y) the Administrative Agent, which consent shall not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect assign to Section 5.1), 8.2(a)(iii), 8.4 one or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative (A) after the funding of the Advances on the Closing Date, the consent of the Borrower shall not be required while an Event of Default has occurred and is continuing, (B) the consent of the Borrower shall be deemed to given if the Borrower shall not have consented to a proposed assignment unless it objects thereto by objected within 10 Business Days following its receipt of written notice to Agent of such proposed assignment, and (with a copy to Revolving Agent with respect to Revolving Loans and Revolver CommitmentsC) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitmentsany Lender, Revolving Agent; provided, that no such consent shall be required from (x) the Administrative Agent, (y) the Borrower with respect to assignments by any Lender to its Affiliate or to another Lender, or (z) the Borrower if (1) the funding of the Advances on the Closing Date has occurred or (2) a Certain Funds Default has occurred and is continuing, provided that in connection each such case notice thereof shall have been given to the Borrower and the Administrative Agent.
(b) Upon demand by the Borrower (with a copy of such demand to the Administrative Agent) (w) any Defaulting Lender, (x) any Lender that has made a demand for payment pursuant to Section 2.11 or 2.14, (y) any Lender that has asserted pursuant to Section 2.08(b) or 2.12 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (z) any Lender that fails to consent to an amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to which the Required Lenders shall have given their consent, will assign to one or more Persons designated by the Borrower all of its rights and obligations under this Agreement (including, without limitation, all of its Commitment and the Advances owing to it).
(c) In each such case,
(A) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(B) except in the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to ’s rights and obligations under this Agreement associated with a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Partyparticular Class, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $10,000,000 or an integral multiple of $5,000,000 1,000,000 in excess thereof (except such minimum amount shall not apply to or at the Borrower’s option, the Sterling Equivalents of $10,000,000 and $1,000,000, respectively);
(IC) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),[Reserved];
(D) each partial such assignment made as a result of a demand by the Borrower pursuant to Section 9.07(b) shall be made as arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,;
(E) no Lender shall be obligated to make any such assignment as a result of a demand by the parties Borrower pursuant to each assignment Section 9.07(b), (1) so long as a Default shall execute have occurred and deliver be continuing and (2) unless and until such Lender shall have received one or more payments from one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount, and from the Borrower or one or more assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.11, 2.14 or 9.04(c)) and (3) unless and until the Borrower shall have paid (or caused to be paid) to the Administrative Agent (a processing and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptancerecordation fee of $3,500; provided, however, that Borrowers the Administrative Agent may, in its sole discretion, elect to waive such processing and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bF) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to Section 9.07(b), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to Section 9.07(b) (in which case the Borrower shall pay the fee required by subclause (E)(3) of Section 9.07(c)), payment a processing and recordation fee of $3,500; provided, however, that the required Administrative Agent may, in its sole discretion, elect to waive such processing feeand recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(d) Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Sections 9.04(a) and (and b) with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iii) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(iv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(v) [Reserved];
(vi) such Assignee assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(vivii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(df) Immediately upon Agent's Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, the required processing feeAdministrative Agent shall, if applicablesuch Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and delivery of Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoBorrower.
(eg) Any The Administrative Agent, acting solely for this purpose as the agent of the Borrower, shall maintain at its address referred to in Section 9.02(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount (and stated interest) of the Advances owing to, each Lender may at any from time sell to one or more commercial bankstime (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitmentabsent manifest error, and the other rights Borrower, the Agents and interests of that the Lenders shall treat each Person whose name is recorded in the Register as a Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other entities (other than the other Loan Documents and the Participant receiving the participating interest Borrower or any of its Affiliates or any natural person) in the Obligations, the Commitments, and the other or to all or a portion of its rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement;
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except as to matters requiring the extent such amendment to, or consent or waiver with respect approval of all the Lenders pursuant to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, Section 9.01; and
(vi) prior to the funding of the Advances on the Closing Date, no participation Lender may sell participations except with the consent of the Borrower in its sole discretion. Each Lender shall be sold to a Loan Party or an Affiliate promptly notify the Borrower after any sale of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable participation by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 169.07(h); provided that the failure of such Participant Lender to give notice to the Borrower as provided herein shall not be entitled to receive affect the validity of such participation or impose any greater payment under Section 16, with respect to any participation, than its participating obligations on such Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired or the applicable participant. Each Lender that sells a participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inshall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(i) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 9.08.
(j) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate to one or more banks or other entities all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loan Documents (including the Obligations owed Loans owing to it and its Commitments) to one the Note or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"Notes held by it), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower however, that: (i) each such assignment shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided furtherconstant, that Administrative Borrower shall be deemed to have consented to and not a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans varying, percentage of all rights and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andobligations under this Agreement, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be less than $5,000,000 and shall be an integral multiple of $1,000,000 in a minimum amount excess thereof, (iii) each such assignment shall be to an Eligible Assignee, and (unless waived by Agent) of $5,000,000 (except such minimum amount assignment shall not apply be to (I) an assignment or delegation by any Lender to any other a Lender, an Affiliate of any such Lender, a Subsidiary of the assigning Lender, or to the bank holding company or a Related Fund Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary) the U.S. Borrower and the Administrative Agent shall have consented to such Lenderassignment (which consents shall not be unreasonably withheld or delayed); provided, that no consent of the U.S. Borrower shall be required if an Event of Default under Section 7.01(a) or (IIe) a group of new Lendershas occurred and is continuing; provided, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent further, that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment consent of the U.S. Borrower shall be made as an assignment deemed to have been provided unless the U.S. Borrower has notified the Administrative Agent of a proportionate part its refusal to give such consent within 10 Business Days of all the assigning Lxxxxx's rights receiving written request for its consent to such assignment, and obligations under this Agreement,
(Eiv) the parties to each such assignment shall execute and deliver to Agent (the Administrative Agent, for its acceptance and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) recording in the Register, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, any Note or Notes subject to such assignment and related information with respect to the Assignee, have been given to Borrowers a processing and Agent (and Revolving Agent if applicable) recordation fee of $3,500 paid by such Lxxxxx and the Assignee,
(F) unless waived by Agent, either the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.the
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of
(c) [Intentionally Deleted].
(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 a copy of any each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of its obligations under the names and addresses of the Lenders and the Commitments of, and principal and interest amounts of the Loans owing to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement Agreement. The Register shall be available for inspection by the U.S. Borrower or any other Loan Document furnished pursuant Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide the U.S. Borrower with a copy of the Register upon reasonable request.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (iii1) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into accept such Assignment and Acceptance, (iv2) record the information contained therein in the Register and (3) give prompt notice thereof to the U.S. Borrower. Within five Business Days after its receipt of such Assignee willnotice, independently and without reliance upon Agentthe relevant Borrower, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions expense, shall execute and deliver to the Administrative Agent in taking exchange for the surrendered Note or not taking action under this Agreement, (v) Notes a new Note to the order of such Eligible Assignee appoints and authorizes Agent or Revolving Agent, as applicable, in an amount equal to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed Commitments and/or Loans assumed by it as pursuant to such Assignment and Acceptance and a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice new Note to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments order of the assigning Lender pro tantoin an amount equal to the Commitments and/or Loans retained by it hereunder. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-l hereto. Such surrendered Note or Notes shall be marked “canceled” and shall be returned promptly to the U.S. Borrower.
(ef) Any Each Lender may at any time sell participations to one or more commercial banksbanks or other entities (other than (x) any natural person (or a holding company, financial institutionsinvestment vehicle or trust for, or other Persons owned and operated for the primary benefit of, a natural person), (a "Participant"y) participating interests in all any Borrower or any Affiliates of such Borrower or (z) any Defaulting Lender) in or to a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement (including, without limitation, a portion of its Commitments, the Loans owing to it and the other Loan DocumentsNote or Notes held by it); provided, however, that (ivi) no such Lender’s
(g) Any Lender shall transfer may, in connection with any assignment or grant participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any participating interest under which the Participant has the right to approve any amendment toinformation, or any consent or waiver with respect to, this Agreement or including Confidential
(h) Notwithstanding any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder provision in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant an Eligible Assignee shall not be entitled to receive any greater payment under Section 16, with respect to any participation, 2.12 or 3.05 than its participating the assigning Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change change in Law law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to effective date of such greater entitlementassignment.
(fi) In connection with Notwithstanding any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time and without the consent of the Administrative Agent or any Borrower create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement (including, without limitation, the Loans owing to secure obligations of such Lenderit and the Notes held by it), including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all System or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s)other central banking authority. Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterSECTION 9.08 [Intentionally Deleted].
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Term Loan Agreement (FMC Corp)
Assignments and Participations. (a) No Obligor may assign any of its rights or obligations hereunder without the prior consent of all of the Lenders and the Agent.
(b) Each Lender may assign any of its Loans, its Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of Credit Interest and its interest acquired under Section 2.01(d) hereof in Swingline Loans (but only with the consent of, in the case of its outstanding Commitments, the Company and the Agent and, in the case of the Revolving Credit Commitment or a Letter of Credit Interest, the Issuing Bank); provided that
(i) Subject no such consent by the Company or the Agent shall be required in the case of any assignment to another Lender;
(ii) except to the conditions set forth in clause (a)(ii) belowextent the Company and the Agent shall otherwise consent, any such partial assignment (other than to another Lender) shall be in an amount at least equal to $5,000,000 (or, if less, the aggregate unpaid principal amount of the Loans and the aggregate Commitments of such Lender);
(iii) each such assignment by a Lender may assign and delegate all of its Revolving Credit Loans, Revolving Credit Commitment or any Letter of Credit Interest shall be made in such manner so that the same portion of its rights Revolving Credit Loans, Revolving Credit Commitment and duties under Letter of Credit Interest is assigned to the Loan Documents respective assignee;
(including the Obligations owed to it and its Commitmentsiv) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such assignment by a Lender of its Term Loans or Term Loan Commitment shall be made in such manner so that the same portion of its Term Loans and Term Loan Commitment, as the case may be, is assigned to the respective assignee;
(v) upon each such assignment, the assignor and assignee shall deliver to the Company, the Agent and the Issuing Bank a Notice of Assignment in the form of Exhibit H hereto; and
(vi) no consent not required of the Company or the Agent under this Section 12.06(b) shall be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided. Upon execution and delivery by the assignor and the assignee to the Company, that no the Agent and the Issuing Bank of such Notice of Assignment, and upon consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to the Company, the Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject Issuing Bank to the following additional conditions:
(A) no assignment may be made extent required above, the assignee shall have, to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate the extent of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of unless otherwise consented to by the date Company, the Assignment Agent and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lenderthe Issuing Bank), an Affiliate of any Lenderthe obligations, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment rights and benefits of a proportionate part of all Lender hereunder holding the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Commitment(s), Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment Letter of the required processing fee, Credit Interest (ior portions thereof) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant and specified in such Notice of Assignment (in addition to the Commitment(s), Loans and Letter of Credit Interest, if any, theretofore held by such Assignment assignee) and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to of such Assignment and Acceptanceassignment, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement the Commitment(s) (and or portion(s) thereof) so assigned. Upon each such assignment the assigning Lxxxxx shall pay the Agent an assignment fee of $3,000; provided that in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documentsany such assignment to a Proposed Lender (as defined in Section 5.08 hereof), such Lender assignment fee shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive paid by the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Company.
(c) By executing A Lender may sell or agree to sell to one or more other Persons a participation in all or any part of any Loans or Letter of Credit Interest held by it, or in its Commitments, in which event each purchaser of a participation (a "Participant") shall be entitled to the rights and delivering an Assignment and Acceptance, benefits of the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iprovisions of Section 9.01(m) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility hereof with respect to any statementsits participation in such Loans, warranties or representations made Letter of Credit Interest and Commitments as if (and the Company shall be directly obligated to such Participant under such provisions as if) such Participant were a "Lender" for purposes of said Section, but, except as otherwise provided in or in connection with this Agreement or the executionSection 4.07(c) hereof, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or shall not have any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation rights or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations benefits under this Agreement or any other Loan Basic Document furnished pursuant hereto, (iii) the Participant's rights against such Assignee confirms that it has received a copy Lender in respect of this Agreement, together with such other documents and information as it has deemed appropriate participation to make its own credit analysis and decision to enter into be those set forth in the agreements executed by such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all favor of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(bParticipant), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all All amounts payable by Borrowers hereunder the Company to any Lender under Section 5 hereof in respect of Loans, Letter of Credit Interest held by it, and its Commitments, shall be determined as if such Lender had not sold or agreed to sell any participations in such participationLoans, Letter of Credit Interest and Commitments, and as if such Lender were funding each of such Loan, Letter of Credit Interest and Commitments in the same way that it is funding the portion of such Loan, Letter of Credit Interest and Commitments in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant to take or refrain from taking any action hereunder or under any other Basic Document except thatthat such Lender may agree with the Participant that it will not, if amounts outstanding under this Agreement are due and unpaidwithout the consent of the Participant, agree to (i) increase or extend the term, or shall have been declared extend the time or shall have become due and waive any requirement for the reduction or termination, of such Lender's related Commitment, (ii) extend the date fixed for the payment of principal of or interest on the related Loan or Loans, Reimbursement Obligations or any portion of any fee hereunder payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if Participant, (iii) reduce the amount of its participating any such payment of principal, (iv) reduce the rate at which interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents is payable thereon, or any direct rights as fee hereunder payable to the other LendersParticipant, Agent, Revolving Agent, Borrowers, to a level below the Collateral, or otherwise in respect of rate at which the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be is entitled to receive any greater payment under Section 16such interest or fee, with respect (v) alter the rights or obligations of the Company to prepay the related Loans or (vi) consent to any participationmodification, than its participating Lender would have been entitled to receive, except supplement or waiver hereof or of any of the other Basic Documents to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired same, under Section 11.09 or 12.04 hereof, requires the applicable participation or the Borrower has specifically consented to such greater entitlementconsent of each Lender.
(fd) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject addition to the assignments and participations permitted under the foregoing provisions of this Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding12.06, any Lender may at (without notice to the Company, the Agent or any time create a other Lender and without payment of any fee)
(i) assign and pledge all or any portion of its Loans to any Federal Reserve Bank as collateral security interest in, or pledge, pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank and (ii) assign all or any portion of its rights under this Agreement and interest its Loans to an affiliate. No such assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Obligors or any of their respective Subsidiaries in the possession of such Lender from time to time to assignees and participants (including prospective assignees and participants), subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Agreement Section 12.06 to secure obligations of such Lenderthe contrary notwithstanding, including no Lender may assign or participate any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from Loan or Reimbursement Obligation held by it hereunder to the Company or any of its obligations hereunder Affiliates or substitute any such pledgee or assignee for such Lender as a party heretoSubsidiaries without the prior consent of each Lender.
(hg) Agent (with respect to Term Loans At the request of any Lender that is not a U.S. Person and Protective Advancesis not a "bank" within the meaning of Section 881(c)(3)(A) and Revolving Agent (with respect to Revolving Loans)of the Code, in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, the Company shall maintain, or cause to be maintained, a register (collectively, the "Register") that, at the request of the Company, shall be kept by the Agent on behalf of the Company at no charge to the Company at the address to which notices to the Agent are to be sent hereunder, on which it enters the name and address of each such Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) each Registered Loan held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a A Registered Loan (and the registered note, if any, evidencing the same) may only be assigned or sold otherwise transferred in whole or in part only by registration of such assignment or sale transfer on the Register (and each registered note shall expressly so provide) and (ii) any Register. Any assignment or sale transfer of all or part of such Loan (and the registered note, if any, evidencing the same) may shall be effected only by registration of such assignment or sale transfer on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale transfer of any Loan (and Registered Loan, the registered note, if any evidencing the same), Borrowers Company shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(ih) In The Register shall be available for inspection by the event that a Company and any Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have a Registered Holder at any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unreasonable time upon reasonable prior notice.
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, any Lender however, that none of the Loan Parties may assign and delegate all or transfer any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with hereunder without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Each Lender may, (x) with the written consent of the Collateral Agent and, in the absence of a continuing Event of Default, the Administrative Borrower, which consent, in each such consent case, shall not be unreasonably withheld or delayed, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan A Commitment and the Term Loan A made by it or its Term Loan B Commitment and the Term Loan B made by it and (y) of:
(A) with the written consent of the Collateral Agent, Administrative Agent and, in the absence of a continuing Event of Default, the Administrative Borrower, which consent, in each such case, shall not be unreasonably withheld or delayed, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment, the Revolving Loans made by it and its Pro Rata Share of Letter of Credit Obligations; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided furtherhowever, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitmentsi) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 500,000 in excess thereof (or the remainder of such Lender’s Revolving Credit Commitment (or if such Lender’s Revolving Credit Commitment has been reduced to zero, Revolving Loans), Term Loan A or Term Loan B, as the case may be) (except such minimum amount shall not apply to (I) an assignment or delegation by any (A) a Lender to any other Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, or (IIB) with any consent otherwise required by this paragraph, a group of new Lenders, each of which is an Affiliate of each other Lender to a Person and its Affiliates or a Related Fund of such new Lender Person to the extent that the aggregate amount to be assigned to all such new Lenders Persons is at least $5,000,0001,000,000 or a multiple of $500,000 in excess thereof (such assignment, a “Related Assignee Assignment”) or (C) with any consent otherwise required by this paragraph, a Lender and such Lender’s Affiliates or Related Funds to a Person to the extent the aggregate amount assigned by such Lender and its Affiliates and Related Funds to such Person is at least $1,000,000 or a multiple of $500,000 in excess thereof (such assignment, a “Related Assignor Assignment”, and together with a “Related Assignee Assignment”, a “Related Assignment”),
, (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(Eii) the parties to each such assignment shall execute and deliver to Agent the Agents, for their acceptance (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the extent required), an Assignment and Acceptance; provided, that together with any promissory note subject to such assignment and such parties shall deliver to the Administrative Agent a processing and recordation fee of $4,000 (except (A) the payment of such fee shall not be required in connection with an assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender, and (B) such fee shall only be payable once in connection with any Related Assignment), (iii) no written consent of the Collateral Agent, the Administrative Agent or the Administrative Borrower shall be required in connection with any assignment by a Lender to another Lender or an Affiliate of such assigning Lender or a Related Fund of such assigning Lender. The Borrowers and Agent the Agents may continue to deal solely and directly with the an assigning Lender in connection with the interest so assigned until such Lender and its assignee shall have executed and delivered to an Assignee until written notice of such assignment, together with payment instructions, addressesthe Administrative Borrower and the Agents, and related information with respect to the AssigneeAgents shall have accepted, have been given to Borrowers an Assignment and Agent (Acceptance. Upon such execution, delivery and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agentacceptance, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance Acceptance, which effective date shall be at least three Business Days after the delivery thereof to the Collateral Agent (or such shorter period as shall be agreed to by the Collateral Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ci) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (iA) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (iiB) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iiiC) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (ivD) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (vE) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (viF) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(dii) Immediately upon Agent's receipt The Collateral Agent shall send a copy of the required processing fee, if applicable, each Assignment and delivery of notice Acceptance to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee Administrative Agent and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banksAdministrative Agent shall, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectivelythe ”Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitments of, Term Loan A Commitments of, and Term Loan B Commitments of, and principal amount of the "Register"Loans (the ”Registered Loans”) on which it enters the name and address Letter of Credit Obligations owing to each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxxfrom time to time. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender, the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of any assignment by a Lender to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender shall maintain a comparable register to the Register.
(iii) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any promissory notes subject to such assignment, the Administrative Agent shall, if the applicable Agents consent to such assignment (to the extent any such Agent’s consent is required) and if such Assignment and Acceptance has been completed (i) a accept such Assignment and Acceptance and (ii) record the information contained therein in the Register.
(iv) A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(iv) In the event that a any Lender sells participations in the a Registered Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, Lender shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "”Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No .
(vi) Any foreign Person who purchases or is assigned or participates in any portion of such Registered Loan shall provide the Agents and the Lender with a completed Internal Revenue Service Form W-8BEN (Certificate of Foreign Status) or a substantially similar form for such purchaser, participant or any other affiliate who is a holder of beneficial interests in the Registered Loan.
(c) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Revolving Credit Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation to disclose action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the outstanding principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the scheduled due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 11.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.07 and Section 5.05 of this Agreement with respect to its participation in any portion of the Participant Register (including Revolving Credit Commitments and the identity Loans as if it were a Lender; provided, however, that the amount of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except such benefit shall be limited to the extent amount that such disclosure is necessary would otherwise be payable to establish that such commitment, loan, letter the Lender selling the participation with respect to the portion of credit or other obligation is the Loan in registered form unwhich the participation was so sold.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with With the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) of Administrative Borrower; provided, that no which consent of Administrative Borrower shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
(B) , and with the prior written consent of Agent, which consent of Agent andshall not be unreasonably withheld, solely in the case of an assignment of Revolving Loans delayed or Revolver Commitmentsconditioned, Revolving Agent; provided, that no such consent and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender.
, any Lender may assign and delegate to one or more assignees, so long as such prospective assignee is an Eligible Transferee (ii) Assignments shall be subject to the following additional conditions:
(A) each, an “Assignee”; provided, however, that no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party Borrower or an Affiliate of a Loan PartyBorrower shall be permitted to become an Assignee), any Permitted Holder, any Defaulting Lender all or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any portion of the foregoing Persons,
(C) the amount of the Commitments and/or Loans Obligations, and the other rights and obligations of the assigning such Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be Documents, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (Ix) an assignment or delegation by any Lender to any other Lender, Lender or an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, however, that Borrowers and Agent may continue to deal solely and directly with the assigning such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Administrative Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
, (Fii) such Lender and its Assignee have delivered to Administrative Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and (iii) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, Agent for Agent's ’s separate account, account a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives notifies the assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments amount of the Term Loan held by each Lender arising therefrom. The Commitment amount of the Term Loan allocated to each Assignee shall reduce such Commitments the amount of the Term Loan of the assigning Lender pro tanto.
(e) In the event of any assignment by Xxxxx Fargo, at a time when no Event of Default exists, of all of its interest in the Term Loan to a Person that is not an Affiliate of Xxxxx Fargo, all of the Collateral other than the Xxxxx Xxxxxx Real Property and other Term Loan Priority Collateral (as defined in the Intercreditor Agreement) shall be released from Agent’s Lien at the sole cost and expense of Borrowers.
(f) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, Obligations and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, and (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving AgentBorrowers, Borrowersthe Collections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(fg) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party Borrower and its Subsidiaries and their respective businesses.
(gh) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(hi) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, Borrower) shall maintain, or cause to be maintained, a register (collectively, the "“Register"”) on which it enters the name and address of each Lender as the registered owner of the applicable Loans loans hereunder (and the principal amount thereof and stated interest thereon) held by such LxxxxxLender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans its Pro Rata Share of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans Pro Rata Share of the Term Loan to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of BorrowersBorrower, shall maintain a register comparable to the Register.
(ij) In the event that a Lender sells participations in the Registered Loan, such LxxxxxLender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unthe
Appears in 1 contract
Samples: Credit Agreement (Dixie Group Inc)
Assignments and Participations. (ia) Subject to the conditions set forth in clause Each Lender (a)(iian "Assignor") below, any Lender may assign its Rights and delegate all or any portion of its rights and duties obligations as a Lender under the Loan Documents (including the Obligations owed to it and its Commitments) Papers to one or more assignees transferees pursuant to an Assignment and Acceptance, so long as such prospective assignee (i) each assignment shall be pro rata with respect to both (x) the Assignor's Applicable Specified Percentage and (y) the Assignor's Applicable Specified Percentage (as that term is an Eligible Transferee used in the Prepetition Credit Agreement) of the Domestic Revolver Loans and the Foreign Revolver Loans of a constant, and not a varying percentage of all Rights and obligations thereunder, (each, an "Assignee"), with ii) each Assignor shall obtain in each case the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower Agent, and (iii) each Assignor shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect in each case pay a $3,500 processing fee to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within Agent. Within five (5) Business Days after having received Administrative Agent receives notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lendersuch assignment, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment Borrower shall execute and deliver to Agent (and with a copy Administrative Agent, in exchange for the Notes issued to Revolving Agent with respect Assignor, new Notes to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice order of such assignment, together with payment instructions, addresses, Assignor and related information with respect its assignee in amounts equal to their respective Applicable Specified Percentages of the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the maximum amount of $3,500, and
(G) the assignee, if it DIP Commitments. Such new Notes shall be dated the effective date of the assignment. It is not a Lender, shall deliver to Agent (specifically acknowledged and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From agreed that on and after the effective date that Agent receives of each assignment, the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder assignee shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights Rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Papers.
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, Rights and the other rights and interests of that Lender (the "Originating Lender") hereunder and obligations under the other Loan DocumentsPapers; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement the Loan Papers shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrowerssuch Lender shall remain the holder of its Notes for all purposes of the Loan Papers, Agent(iv) the participant shall be granted the Right to vote on or consent to only those matters described in Sections 11.01(a), Revolving (b), (c) and (d) hereof, (v) Obligors, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating Lender's rights their respective Rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementPapers.
(fc) In Any Lender may, in connection with any such assignment or participation participation, or proposed assignment or participation participation, disclose to the assignee or any grant of a security interest inparticipant, or pledge ofproposed assignee or participant, any information relating to the Borrower and its rights under Subsidiaries furnished to such Lender by or on behalf of the Borrower and interest its Subsidiaries.
(d) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(gi) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights Rights under and interest in this Agreement (including, without limitation, the Advances owing to secure obligations of such Lender, including any pledge it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24System, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) no participant of any assignment Lender may further assign or sale participate any of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes its interest in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) Papers to any Person (except to the extent that as may be required by Law or a Tribunal having authority over such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unparticipant).
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Pacific Gateway Exchange Inc)
Assignments and Participations. (a) Each Lender (an "Assignor") may assign its Rights and obligations as a Lender under the Loan Papers to one or more transferees pursuant to an Assignment and Acceptance, so long as (i) Subject each assignment shall be of a constant, and not a varying percentage of all Rights and obligations thereunder, provided that any assignment may assign a non-pro rata portion of any of the Revolver Loan, Term Loan or Special Purpose Loan, (ii) each Assignor shall obtain in each case the prior written consent of Administrative Agent and the Borrower, in each case such consent of the Borrower and the Administrative Agent not to be unreasonably withheld or delayed, provided that (A) in the conditions set forth in clause event there exists an Event of Default that is continuing, no consent of the Borrower shall be required to make an assignment and (a)(iiB) below, no consent of the Borrower shall be required for any Lender may to assign and delegate all or any portion of its rights Loan to an Affiliate or another existing Lender, (iii) each Assignor shall in each case pay a $3,500 processing fee to Administrative Agent, (iv) no such assignment is for an amount less than $5,000,000 and duties under the Loan Documents in increments $1,000,000, provided that, if any such assignment is to an existing Lender, such minimum assignment amounts shall not be required and (including the Obligations owed v) if any such assignment is a partial assignment, no Lender shall hold less than $5,000,000 immediately after giving effect to it any assignment. Assignments and its Commitmentsother transfers (except participations) with respect to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), each Lender's participation in a given Letter of Credit may only be made with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) of the Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within Agent. Within five (5) Business Days after having received Administrative Agent receives notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lendersuch assignment, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment Borrower shall execute and deliver to Agent (and with a copy Administrative Agent, in exchange for the Notes issued to Revolving Agent with respect Assignor, new Notes to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice order of such assignmentAssignor and its assignee in amounts equal to their respective Applicable Specified Percentages of the Revolver Commitment and/or the Special Purpose Commitment, together with payment instructions, addresses, and related information with respect to and/or the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the outstanding amount of $3,500the Term Loan, and
(G) as applicable. Such new Notes shall be dated the assignee, if it effective date of the assignment. It is not a Lender, shall deliver to Agent (specifically acknowledged and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From agreed that on and after the effective date that Agent receives of each assignment, the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder assignee shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights Rights and obligations of a Lender under the Loan Documents, and (ii) Papers. It is specifically agreed by all parties hereto that Lenders may have different percentages for each of the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Loans.
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, Rights and the other rights and interests of that Lender (the "Originating Lender") hereunder and obligations under the other Loan DocumentsPapers; provided, however, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement the Loan Papers shall remain unchanged, (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrowerssuch Lender shall remain the holder of its Notes for all purposes of the Loan Papers, Agent(iv) the participant shall be granted the Right to vote on or consent to only those matters described in Sections 11.01(a), Revolving (b), (c) and (d) hereof, (v) Obligors, the Administrative Agent, and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating Lender's rights their respective Rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, Papers and (vi) no such participation shall be sold to a Loan Party or is for an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, less than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement$5,000,000.
(fc) In Any Lender may, in connection with any such assignment or participation participation, or proposed assignment or participation participation, disclose to the assignee or any grant of a security interest inparticipant, or pledge ofproposed assignee or participant, its rights under any information relating to the Parent, the Borrower and interest their Subsidiaries furnished to such Lender by or on behalf of the Parent, the Borrower and their Subsidiaries.
(d) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(gi) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, in all or any portion of its rights Rights under and interest in this Agreement (including, without limitation, the Advances owing to secure obligations of such Lender, including any pledge it and the Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) System and (ii) no participant of any assignment Lender may further assign or sale participate any of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes its interest in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) Papers to any Person (except to the extent that as may be required by Law or a Tribunal having authority over such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unparticipant).
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed) of:
delayed and, in the case of the Borrower, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.10 or 2.13, (iii) any Lender that has asserted pursuant to Section 2.07(b) or 2.11 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitments, Revolving any Lender; provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a)), (1) (except in the case of an assignment of the type described in clause (iv) above to the extent such Default would no longer be continuing after giving effect to the relevant amendment or waiver) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.10, 2.13 or Assignee has 8.04(c)) and (3) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (3) of this Section 8.07(a)(iv)(F)), payment a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and provided further that in the event that, in connection with a demand by the Borrower pursuant to this Section 8.07(a), the assignor shall not execute and deliver the relevant Assignment and Acceptance within one Business Day of the required processing feeBorrower’s request, such assignor shall be deemed to have executed and delivered such Assignment and Acceptance. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, ,
(ii) validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iiiii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iiiiv) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01(e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(ivv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(vvi) such Assignee assignee confirms that it is an Eligible Assignee;
(vii) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(viviii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02
(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 8.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause (a)(ii) belowbenefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, any Lender however, that none of the Loan Parties may assign and delegate all or transfer any portion of its rights and duties hereunder or under the other Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(each such b) Each Lender may (x) with the written consent of the Collateral Agent, which consent shall not be unreasonably withheld or delayed, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan A Commitment and any Term Loan A made by it and (y) of:
(A) Administrative Borrowerwith the written consent of each Agent, assign to one or more other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Term Loan B Commitment and the Term Loan B made by it; provided, that no consent however, that, (i) except as provided in the last sentence of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to this Section 5.112.07(b), 8.2(a)(iiithe parties to each such assignment shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), 8.4 or 8.5 has occurred for its acceptance, an Assignment and is continuing or Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) except the payment of a Lender; provided further, that Administrative Borrower such fee shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall not be required in connection with an assignment to a Person that is by a Lender or to an Affiliate (other than natural personsof such Lender or a Related Fund) of a Lender.
and (ii) Assignments no written consent of the Collateral Agent or the Administrative Agent shall be subject required (1) in connection with any assignment by a Lender to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting such Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, or delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least three (II3) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender Business Days after the delivery thereof to the extent that the aggregate amount to be assigned to all Collateral Agent (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a “Lender” hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund without delivering an Assignment and theretoAcceptance to the Agents or to the Borrowers (a “Related Party Assignment”); provided, however, that nothing contained herein shall release any (i) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender from obligations that survive until an Assignment and Acceptance has been delivered to the termination of this AgreementAdministrative Agent for recordation on the Register, including (ii) the Collateral Agent may continue to deal solely and directly with such assigning Lender's obligations under Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 15 12.07(e), (iii) the failure of such assigning Lender to deliver an Assignment and Section 17.9(a)Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (iv) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeThe Administrative Agent shall, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), acting solely for this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans and stated interest thereonthereon (the “Registered Loans”) held owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by such Lxxxxxthe Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. Other than in connection with In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register (the “Related Party Register”) comparable to the Register on behalf of the Borrowers.
(e) Upon receipt by the Administrative Agent of an Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(if) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan or the Related Party Register (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(ig) In the event that a any Lender sells participations in the a Registered Loan, such Lxxxxx, Lender shall maintain a register for this purpose as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register the Borrowers on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No .
(h) Any non-U.S. Lender who is assigned an interest in any portion of such Registered Loan pursuant to an Assignment and Acceptance shall comply with Section 2.08(d).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation to disclose action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.08, Section 2.09, Section 2.10 and Section 4.04 of this Agreement with respect to its participation in any portion of the Participant Register (including Commitments and the identity of any Participant or any information relating to Loans as if it was a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unLender.
Appears in 1 contract
Assignments and Participations. (a) Lender may from time to time, without the consent of Borrower or Guarantor, sell, transfer, pledge, assign, convey or syndicate the Note (or if there is more than one note, add some of the Notes), the Loan and the Loan Documents (or any interest therein), and any and all servicing rights with respect thereto, and may grant participations in the Loan, delegate its duties and obligations under the Loan and the Loan Documents, split the Loan into multiple parts, or the Note into multiple component notes or tranches or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in rated or unrated public offerings or private placement. In connection with any such sale, transfer, assignment, conveyance, participation, delegation, syndication, splitting or securitization, Lender may, acting for this purpose as an agent of Borrower, maintain at its offices a register for the recordation of the names and addresses of Lender’s participants or assignees, and the amount and terms of Lender’s sales, transfers, assignments, conveyances and participations including specifying any such participant’s or assignee’s entitlement to payments of principal and interest, and any payments made, with respect to each such sale, transfer, assignment, conveyance or participation.
(b) Without limiting the generality of the foregoing or Lender’s other rights under this Agreement or other Loan Documents, Lender in its sole and absolute discretion, shall have the right at any time to require Borrower to execute and deliver “component” notes (including senior and junior notes), which notes may (i) Subject require the holder of each or any of such notes (“Holder”) to make its pro rata or other share of disbursements of the Holdback pursuant to Section 2.2, (ii) be paid in such order of priority as may be designated by Lender, (iii) bear interest at rates different than the Interest Rate, provided that (A) the aggregate principal amount of such “component” notes shall equal the outstanding principal balance of the Loan immediately prior to the conditions set forth creation of such “component” notes, (B) the weighted average interest rate of all such “component” notes shall on the date created equal the Interest Rate which was applicable to the Loan immediately prior to the creation of such “component” notes, (C) the debt service payments on all such “component” notes shall on the date created equal the debt service payments which were required under this Agreement immediately prior to the creation of such component notes and (D) the other terms and provisions of each of the “component” notes shall be otherwise identical in clause (a)(ii) belowsubstance and substantially similar in form to the Loan Documents. Borrower, at Lender’s expense shall cooperate with all reasonable requests of Lender in order to establish the “component” notes and shall execute and deliver such documents in addition to the component notes as shall reasonably be required by Lender, including amendments to the Security Instrument, any financing statements or other security documents necessary to evidence the component notes and the appointment of any agent for the Holders under the Co-Lender Agreement (defined below in subsection Section 9.1(b) in connection therewith, all in form and substance reasonably satisfactory to Lender including, without limitation, amendments to the Loan Documents and the severance of security documents if requested. In the event Borrower fails to execute and deliver such documents to Lender within five (5) Business Days following such request by Lender, Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such transactions, Borrower ratifying all that such attorney shall do by virtue thereof.
(c) If at any time the Loan is evidenced by more than one Note, Borrower acknowledges that the obligations of any Holder to make advances or disbursements under any Note or perform any other obligations under this Agreement or the other Loan Documents shall be several and not joint, and the obligations of Borrower to any Holder shall not be reduced, discharged or released as a result of the failure of any other Holder to perform its obligations under this Agreement or the other Loan Documents. Borrower hereby waives any existing or future right of offset, claim or defense against any Holder arising out of the failure of any other Holder to make any disbursements hereunder or perform any other obligations of such Holder under this Agreement or the other Loan Documents.
(d) At the option of Lender, the Loan or any portion thereof may be serviced by Lender, its Affiliate or a servicer selected by Lender (“Servicer”) and Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers administrative responsibilities under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof Servicer pursuant to a co-lender and thereof, together with such powers as are reasonably incidental thereto, servicing agreement (the “Co-Lender Agreement”) among the Holders and (vi) such Assignee agrees that it Servicer. Lender will perform all notify Borrower of the obligations which by appointment of a Servicer, unless the terms Servicer is Lender. Servicer shall be entitled to reimbursement of this Agreement are required to be performed by it costs and expenses as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning same extent (but without duplication) as Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and is entitled thereto under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes applicable provisions of this Agreement and the other Loan Documents and Documents. To the Participant receiving the participating interest extent provided in the ObligationsCo-Lender Agreement, Servicer shall have the right to exercise all rights of Lender and enforce all obligations of Borrower pursuant to the provisions of this Agreement, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement Note and the other Loan Documents. The rights and obligations of Holders inter se shall be governed by the Co-Lender Agreement, (iv) no including the priority of payments. The Co-Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment toAgreement may provide that Lender, Servicer or any consent Holder or waiver with respect tocustodian appointed by the Holders shall be the agent of the Holders for purposes of holding the collateral for the Loan and enforcing the liens created by the Loan Documents, this Agreement or any other Loan Document, except and Borrower will execute such amendments to the extent Loan Documents as may be necessary or desirable to effectuate and acknowledge the appointment of such amendment toagent. Neither Borrower, Guarantors, any Environmental Indemnitor nor any Person claiming by or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in through any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation foregoing shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights third party beneficiary of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall agreement referred to in this Section 9.1(d) or have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementthereof.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth terms of Article 9 hereof, a Lender may consummate a Secondary Market Transaction without the consent of any Person.
(b) Subject to the terms of Article 9 hereof, a Lender may, in clause (a)(ii) belowconnection with any Secondary Market Transaction disclose to the assignee or Participant or proposed assignee or participant, as the case may be, any information relating to Borrower or any of its Affiliates or to any aspect of the Loan that has been furnished to such Lender may assign and delegate by or on behalf of Borrower or any of its Affiliates.
(c) Upon any assignment of all or any portion of its rights the Loan and duties the assumption of the obligations of the assignor arising under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by AgentDocuments, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been of the interest assigned to it pursuant to by such Assignment and Acceptanceassignment, shall be a "Lender" and shall thereafter have the rights and obligations of a Lender under this Agreement. For the Loan Documentsavoidance of doubt, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and a Participant shall not be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease considered to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination an assignee for purposes of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a11.25(c).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower Xxxxxxxx agrees that each Participant shall be entitled to the benefits benefit of Section 16 2.5 (subject to the requirements and limitations obligations therein, including the requirements under Section 16.2 2.6 (it being understood that the documentation required under Section 16.2 2.6 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16); provided that such Participant shall not be entitled to receive any greater payment under Section 162.5, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
. -165- (fe) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor Notice of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, assignment and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender assumption of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a the Loan (and the registered notename, if any, evidencing address and contract information of the same) may assignee shall be assigned or sold in whole or in part only by registration promptly provided to Administrative Agent upon the effectiveness of such assignment or sale on the Register (and each registered note shall expressly so provide) assumption and (ii) any assignment or sale of all or part upon receipt of such Loan (and the registered notenotice, if any, evidencing the same) may be effected only by registration Administrative Agent shall promptly notify Borrower of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registerassignment.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Senior Loan Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Assignments and Participations. (ia) Subject This Agreement and the other Loan Documents shall be binding upon and inure to the conditions set forth in clause benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights or Obligations hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(a)(iib) below, any Each Lender may (x) with the written consent of the Collateral Agent assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments(y) with the written consent of each Agent, assign to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), other lenders or other entities all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative BorrowerRevolving Loans made by it; provided, however, that no (i) such assignment shall require the prior consent of the Administrative Borrower (which consent shall be required not (1) if be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender Fortress Credit Corp. or any of its AffiliatesAffiliates or Related Funds), or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(Cii) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $5,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (x) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIy) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0005,000,000 or a multiple of $1,000,000 in excess thereof),
, (Diii) each partial assignment shall be made except as an assignment provided in the last sentence of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) Section 12.07(b), the parties to each such assignment shall execute and deliver to the Collateral Agent and the Administrative Borrower (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, if applicable), for their acceptance, an Assignment and Acceptance; provided, that Borrowers together with any promissory note subject to such assignment and Agent may continue such parties shall deliver to deal solely the Collateral Agent, for the benefit of the Collateral Agent, a processing and directly with recordation fee of $5,000 (except the assigning Lender payment of such fee shall not be required in connection with the interest so assigned an assignment by a Lender to a Lender, an Assignee until written notice Affiliate of such assignment, together with payment instructions, addresses, Lender or a Related Fund of such Lender) and related information with respect to (iv) no written consent of the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Collateral Agent, the assigning Administrative Agent or the Administrative Borrower shall be required (1) in connection with any assignment by a Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent an Affiliate of such Lender, a Related Fund of such Lender or (2) if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender. Upon such execution, delivery and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, which effective date shall be at least 3 Business Days after the delivery thereof to the Collateral Agent, the Administrative Borrower and the Administrative Agent (or such shorter period as shall be agreed to by the Collateral Agent, the Administrative Borrower, the Administrative Agent and the parties to such assignment), (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto hereto). Notwithstanding anything to the contrary contained in this Section 12.07(b), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and theretoAcceptance to the Agents or to any other Person (a “Related Party Assignment”); provided, however, that nothing contained herein shall release any (I) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender from obligations that survive until an Assignment and Acceptance has been delivered to the termination of this AgreementAdministrative Agent for recordation on the Register, including (II) the Collateral Agent may continue to deal solely and directly with such assigning Lender's obligations under Lender until receipt by the Collateral Agent of a copy of the fully executed Assignment and Acceptance pursuant to Section 15 12.07(e), (III) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (IV) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 17.9(a)12.07(d) below.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing feeThe Administrative Agent shall, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), acting solely for this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) (the “Registered Loans”) and Letter of Credit Obligations owing to each Lender from time to time. Subject to the last sentence of this Section 12.07(d), the entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice. In the case of an assignment pursuant to the last sentence of Section 12.07(b) as to which an Assignment and Acceptance is not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained, a register (collectivelythe “Related Party Register”) comparable to the Register on behalf of the Borrowers. The Related Party Register shall be available for inspection by the Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent, the "Register"Administrative Borrower or the Collateral Agent pursuant to Section 12.07(b) on (which it enters the name and address of each Lender as the registered owner consent of the applicable Loans Collateral Agent must be evidenced by the Collateral Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register and provide to the Collateral Agent a copy of the fully executed Assignment and Acceptance.
(and the principal amount thereof and stated interest thereonf) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(ig) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by any of the Administrative Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(i) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments, the Loans made by it and its Pro Rata Share of the Letter of Credit Obligations); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans or Letter of Credit Obligations, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of 0, Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided that, at the time such participant is claiming benefits pursuant to Section 2.09, such participant shall comply all obligations under Section 2.09 as if it was a Lender thereunder.
(j) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a ”Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Samples: Financing Agreement (Funko, Inc.)
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any The Lender may from time to time assign and delegate to another Person all or any a portion of its rights and duties obligations under this Agreement (including, without limitation, all or a portion of the Loan Documents (including Commitment, the Obligations owed to it Advances and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"the Note), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitmentsi) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely except in the case of an assignment to an Affiliate of Revolving Loans or Revolver Commitmentsthe Lender, Revolving Agent; provided, that no the Borrower must give its prior written consent to such assignment (which consent shall not be required unreasonably withheld), and (ii) except in connection with the case of an assignment to a Person that is a an Affiliate of the Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) entire remaining amount of the Lender’s Commitment, the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents Commitment subject to each such assignment (determined as shall not be less than $10,000,000 unless the Borrower otherwise consents; provided further that any consent of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount Borrower otherwise required under this paragraph shall not apply to (I) be required if an assignment or delegation by any Lender to any other Lender, an Affiliate Event of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which Default has occurred and is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Actcontinuing.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, The Lender may sell participations to one or more banks or other entities (ia “Participant”) the Assignee thereunder shall be a party hereto and, in or to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining a portion of an assigning Lender's its rights and obligations under this Agreement and the other Loan Documents(including, such Lender shall cease to be a party hereto and thereto); providedwithout limitation, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any a portion of its Obligations, its Commitment, the Advances and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsNote); provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible to the Borrower for the performance of such obligations, obligations and (iii) Borrowers, Agent, Revolving Agent, and the Lenders Borrower shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which the Lender sells such a participation shall provide that the Lender shall retain the sole right to enforce this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment toamendment, or any consent modification or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date provision of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such agreement or instrument may provide that the Lender will not, without the consent of the Participant, agree to (i) increase or extend the term, or extend the time or waive any requirement for the reduction or termination, of the Commitment, (ii) extend the date fixed for the payment of principal or interest on the Advances or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any payment of principal hereunder, or (iv) reduce the rate at which interest is payable hereunder, or any fee payable to the Participant, to a level below the rate at which the Participant shall not be is entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation interest or the Borrower has specifically consented to such greater entitlementfee.
(fc) In The Lender may, in connection with any such assignment or participation or proposed assignment or participation pursuant to this Section 7.05, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower or any grant Subsidiaries or Affiliates thereof furnished to the Lender by or on behalf of a security interest in, or pledge of, its rights under and interest the Borrower.
(d) Notwithstanding any other provision set forth in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time assign or create a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender(including, including any pledge without limitation, the Advances and the Note) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawSystem; provided, provided that no such pledge or assignment of a security interest shall release such the Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such the Lender as a party hereto.
(he) Agent (with respect All amounts payable by the Borrower to Term Loans the Lender under Sections 2.10, 2.11, 2.12 and Protective Advances7.04(b) shall be determined as if the Lender had not sold or agreed to sell any participations in the Advances or the Note or its Commitment and Revolving Agent (with respect to Revolving Loans), in as if the Lender were funding each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (Advances and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes Commitment in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) way that it is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of funding the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (Advances and the registered note, if any, evidencing the same) may be participated Commitment in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall which no participations have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unbeen sold.
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to: (i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Administrative Agent and the Administrative Borrower, and (ii) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each such consent not be unreasonably withheld or delayed) of:
(A) Agent and the Administrative Borrower; provided, that no (A) the consent of any Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (3) shall not be required during the continuance of an Event of Default; provided, further, that no written consent of the Agents or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2x) in connection with an any assignment to a Person that is by a Lender to any Agent or an any Lender, any Affiliate of any Agent or any Lender or any Related Fund of any Agent or any Lender or (other than natural personsy) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed if such assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, amalgamation, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of any Lender.
(iic) Assignments shall be subject to the following additional conditions:
: (Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 100,000 in excess thereof (or the remainder of such Xxxxxx's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (IA) an assignment Agent or delegation by any Lender to any other a Lender, an Affiliate of any Lender, an Agent or a Lender or a Related Fund of such Lender, an Agent or a Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),each
(Dii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to the Administrative Agent (and with a copy to the Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable), payment of the required processing feefor its acceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other such parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect shall deliver to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Administrative Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at for the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving benefit of the Administrative Agent, as applicable, to take such actions a processing and to exercise such powers under this Agreement and recordation fee of $5,000 (except the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance payment of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant fee shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than required in connection with an assignment by a Lender of all to an Agent or any portion of its portion of Loans to a Lender, an Affiliate of such an Agent or a Lender or a Related Fund of such Lender an Agent or a Lender), any forms and certificates required pursuant to Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; and (iiii) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of No such assignment shall be made to any Defaulting Lender, any Loan Party, any Permitted Holder (or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment other direct or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender indirect equity holder of the registered noteParent), if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the any holder of such registered noteSubordinated Indebtedness or any of their respective Affiliates, whereuponin each case, at without the request prior written consent of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterAdministrative Agent.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any The Lender may assign and delegate sell, assign, transfer, negotiate or grant participations to other financial institutions in all or any portion part of its rights right and duties obligations under the Loan Documents (including all or a portion of its Commitments and the Obligations owed Loans at the time owing to it the Lender) without the consent of, or notice to, the Borrower, provided that any assignee or transferee agrees to be bound by the terms and conditions of this Agreement. The Lender may, in connection with any actual or proposed assignment or participation, disclose to the actual or proposed assignee or participant, any information relating to the Loan Parties. No Loan Party shall have the right to assign its Commitments) to one rights hereunder or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with under any Loan Document or any interest herein or therein without the prior written consent of the Lender, which consent can be withheld in the sole discretion of the Lender, provided that (each such consent not be unreasonably withheld or delayedi) of:
upon the written request of the Lender in its sole discretion the Guarantor shall (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1and hereby agrees to), 8.2(a)(iiiwithin 45 days of the Closing Date (the “45 Day Period”), 8.4 or 8.5 has occurred and is continuing or (2ii) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) upon the election of a Lender; provided furtherGuarantor and Borrower, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by upon written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) Lender within five (5) Business Days after having received notice thereof; and
(B) Agent andthe 45 Day Period, solely in the case of an assignment of Revolving Loans or Revolver CommitmentsGuarantor may, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any assume all of the foregoing Persons,
(C) the amount Obligations of the Commitments and/or Loans and the other rights and obligations of the assigning Lender Borrower hereunder and under the other Loan Documents and shall deliver, at its sole cost and expense (but subject to each such assignment (determined as of the date limitations contained in Section 8.05), all documents reasonably requested by the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with such assumption (for the interest so assigned to an Assignee until written notice avoidance of doubt, it being understood that upon such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and assumption all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender financial covenants under the Loan DocumentsDocuments shall, in addition to any other required amendments, be amended to be tested based on the financial performance of the Guarantor only, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be not on a party hereto and theretoConsolidated basis); provided, further, that nothing contained notwithstanding anything herein shall release any assigning Lender from obligations that survive to the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or contrary in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant assumption Borrower shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements merge with and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together into Guarantor with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of Guarantor surviving such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Registermerger.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) of the Administrative Agent and the Administrative Borrower; provided, however, that (i) no written consent of the Administrative Agent or the Administrative Borrower shall be required if such assignment is in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender and (ii) the written consent of the Administrative Borrower (A) shall not be unreasonably withheld, conditioned or delayed, (B) shall not be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender, (C) shall not be required (1) if such assignment is to a Person other than a Competitor, upon the occurrence and during the continuance of an Event of Default and (2) if such assignment is to a Competitor, upon the occurrence and during the continuance of an Event of Default under Sections 8.1Section 9.01(a), 8.2(a)(iSection 9.01(c) (solely with respect to the failure of the Loan Parties to perform or comply with any covenant or agreement contained in Section 5.17.02(g) or Section 7.03), 8.2(a)(iii), 8.4 Section 9.01(f) or 8.5 has occurred Section 9.01(g) and is continuing or (2D) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto given if not denied by written notice to Agent (with a copy to Revolving Agent the Administrative Borrower within 5 Business Days of the date of the request therefor and, with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andany denial, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to accompanied by a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderwritten explanation thereof.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Administrative Agent (with a copy to the Collateral Agent), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and any information required by Section 7.02(q), and such parties shall deliver to the Administrative Agent, for its own account, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or 120535197v14 a Related Fund of such Lender), a duly executed IRS Form W-9, and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act; and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder, equity holder of the Parent or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B), in the case of each of clauses (A) and (B), without the prior written consent of the Collateral Agent.
(Cd) Upon the amount of the Commitments and/or Loans execution, delivery and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate acceptance of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From from and after the effective date that specified therein and recordation thereof by the Administrative Agent receives on the executed Assignment and Acceptance Register in accordance with Section 12.07(f), (A) the assignee thereunder shall become a "Lender" hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein . No assignment shall release any assigning Lender from obligations that survive the termination be effective for purposes of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(aAgreement unless it has been recorded in the Register as provided in this clause (d).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which 120535197v14 by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each fully completed Assignment and Acceptance delivered to it by the Collateral Agent and a register (collectively, the "Register") on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held by such Lxxxxx(the "Registered Loans") owing to each Lender from time to time. Other than The entries in connection with an assignment by the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a fully completed Assignment and Acceptance, $5,000 processing and recordation fee, if applicable, a duly executed IRS Form W-9, and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, the Administrative Agent shall record the information contained therein in the Register (as adjusted to reflect any principal payments on or any portion amounts capitalized and added to the principal balance of its portion the Loans and/or Commitment reductions made subsequent to the effective date of Loans the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to an Affiliate of such Lender or a Related Fund of such Lender the Collateral Agent).
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the 120535197v14 Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Samples: Financing Agreement (SMTC Corp)
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an a Default or Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent andAgent, solely in Swing Lender, and Issuing Bank; provided that the case consent of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent Swing Lender and Issuing Bank shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) for assignments of a Lenderthe FILO Term Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to (i) a Competitor, unless an Event of Default has occurred and is continuing under Section 8.1, 8.4 or 8.5, or (ii) a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's Lender’s rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's ’s separate account, a processing fee in the amount of $3,500, and,
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "“Administrative Questionnaire"”), and
(H) and all information and other documents required under if the Patriot ActFILO Term Loan has not been prepaid in full pursuant to Section 2.4(d)(ii), the Assignee, if it is not a Lender, shall deliver to Agent a joinder to the Agreement Among Lenders in a form approved by Agent.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, Borrowers) shall maintain, or cause to be maintained, a register (collectively, the "“Register"”) on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such LxxxxxLender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans the Revolving Commitment or FILO Term Loan to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans Commitment to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Registered Loan, such LxxxxxLender, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Registered Loans that is subject to such participations) (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's ’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(j) Agent shall make a copy of the Register (and each Lender shall make a copy of its Participant Register to the extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with With the prior written consent of (each such A) Borrower, which consent of Borrower shall not be unreasonably withheld withheld, delayed or delayed) of:
conditioned (A) Administrative Borrower; provided, that no consent of Administrative Borrower and shall not be required (1i) if an Event of Default under Sections Section 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or continuing, (2ii) in connection with an assignment to a Person that is a Lender Lender, a Related Fund, or an Affiliate (other than natural personsindividuals) of a LenderLender or (iii) in connection with the primary syndication by Jefferies Finance of the B Term Loans outstanding on the Closing Date); provided furtherprovided, it being understood that Administrative Borrower shall be deemed to have consented to a proposed any such assignment for which its consent is otherwise required unless it objects shall object thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
thereof and (B) Agent, which consent of Agent andshall not be unreasonably withheld, solely in the case of an assignment of Revolving Loans delayed or Revolver Commitments, Revolving Agent; provided, that no such consent conditioned (and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural personsindividuals) of a Lender.
), any Lender may assign and delegate to one or more assignees (ii) Assignments shall be subject to the following additional conditions:
(A) each an “Assignee”; provided, however, that no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender Party shall be permitted to become an Assignee except to the limited extent provided in Section 2.15 and Section 2.16) all or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any portion of the foregoing Persons,
(C) the amount of Obligations, the Commitments and/or Loans and the other rights and obligations of the assigning such Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be Documents, in a minimum amount (unless waived by Agent) of $5,000,000 1,000,000 in the case of Term Loans of any Tranche (except except, in either case, such minimum amount shall not apply to (Ix) an assignment or delegation by any Lender to any other Lender, Lender or an Affiliate of any Lender, or a Related Fund of such Lender, or (IIy) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
2,500,000 or $1,000,000, as applicable, or (Dz) each partial assignment shall be made as an assignment of a proportionate part the entire remaining amount of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and AcceptanceLender’s Commitments or outstanding Loans); provided, however, that Borrowers Borrower and Agent may continue to deal solely and directly with the assigning such Lender in connection with the interest so assigned to an Assignee until (A) written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,
, (FB) such Lender and its Assignee have delivered to Borrower and Agent an Assignment and Acceptance and Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), (C) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, Agent for Agent's ’s separate account, account a processing fee in the amount of $3,500; provided, and
(G) however, that such fee shall not be payable in the assignee, if it is not case of an assignment by any Lender to a Related Fund of such Lender, and (D) such assignment shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved have been recorded by Agent (in the "Administrative Questionnaire") and all information and other documents required under the Patriot ActRegister in accordance with Section 13.1(h).
(b) From and after the date that Agent receives notifies the assigning Lender (with a copy to Borrower) that it has received an executed Assignment and Acceptance Acceptance, the recordation of such assignment in the Register in accordance with Section 13.1(h) and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 Section 10.3, Section 12 and 16any other Section of this Agreement or any other Loan Document with respect to indemnities and expense reimbursement provisions that expressly survive the termination of this Agreement) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, however, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a)17.9.
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Parent or any Loan Party of its Restricted Subsidiaries or the performance or observance by Parent or any Loan Party of its Restricted Subsidiaries of any of its obligations under this Agreement or any other Loan Document furnished pursuant heretoDocument, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b) and the recordation of such assignment in the Register pursuant to Section 13.1(h), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments and Loans arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Golden Nugget Online Gaming, Inc.)
Assignments and Participations. (i) 1. This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
2. Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), this Agreement with the prior written consent (each such consent not be unreasonably withheld or delayed) ofrespect to:
(Aa) all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of the Administrative Agent and the Administrative Borrower, and 137907439v16
(b) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each Agent and the Administrative Borrower; provided, that no (A) the consent of any Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (3) shall not be required during the continuance of an Event of Default; provided, further, that no written consent of the Agents or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2x) in connection with an any assignment to a Person that is by a Lender to any Agent or an any Lender, any Affiliate of any Agent or any Lender or any Related Fund of any Agent or any Lender or (other than natural personsy) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed if such assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, amalgamation, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of any Lender.
(ii) 3. Assignments shall be subject to the following additional conditions:
(Aa) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 100,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (IA) an assignment Agent or delegation by any Lender to any other a Lender, an Affiliate of any Lender, an Agent or a Lender or a Related Fund of such Lender, an Agent or a Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $100,000 in excess thereof),;
(Db) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the The parties to each such assignment shall execute and deliver to the Administrative Agent (and with a copy to the Revolving Agent with respect to Revolving Loans and Revolver Commitments) Agent, if applicable), for its acceptance, an Assignment and Acceptance, and such parties shall deliver to the Administrative Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to an Agent or a Lender, an Affiliate of an Agent or a Lender or a Related Fund of an Agent or a Lender), any forms and certificates required pursuant to Section 2.09(e) and all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws; providedand
(c) No such assignment shall be made to any Defaulting Lender, any Loan Party, any Permitted Holder (or other direct or indirect equity holder of the Parent), any holder of Subordinated Indebtedness or any of their respective Affiliates, in each case, without the prior written consent of the Administrative Agent.
4. Upon such execution, delivery and acceptance, from and after the effective date specified in each Assignment and Acceptance and recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, in addition to the rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that Borrowers have been assigned to it pursuant to such Assignment and Agent may continue to deal solely Acceptance and directly with (B) the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto andshall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant 137907439v16 to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and theretohereto); provided, that nothing contained herein . No assignment shall release any assigning Lender from obligations that survive the termination be effective for purposes of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a)Agreement unless it has been recorded on the Register as provided in this Section.
(c) 5. By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
6. The Administrative Agent shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain, or cause to be maintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (dthe “Register”) Immediately for the recordation of the names and addresses of the Lenders and the Commitments of, and the principal amount of the Loans (and stated interest thereon) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
7. Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, the processing and recordation fee of $5,000, any forms and certificates required pursuant to Section 2.09(e) and all other know-your-customer documentation and information requested by the applicable Agent, and subject to any consent required from any Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Agent's receipt execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the required processing fee137907439v16 Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with delivery of the assignment to the Administrative Agent) and provide to the Revolving Agent, if applicable, a copy of the fully executed Assignment and delivery Acceptance.
8. If any assignment by any Lender holding any promissory note is made after the issuance of notice to such promissory note, the assigning Lender pursuant shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such promissory note to Section 13.1(bthe Administrative Agent for cancellation, and, if requested by either the assignee or the assigning Lender, the Administrative Borrower shall issue and deliver a new promissory note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
9. In the event that any Lender sells participations in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of such Lender’s rights and obligations under the Loans owning to it, such Lender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, maintain, or cause to be maintained, a register, on which it enters the name and address of each participant and their respective successors and assigns, and the principal amounts (and stated interest thereon) of each Participant’s interest in the Loans or other obligations under the Loan Documents that is the subject of the participation (the ”Participant Register”). The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Participant Register as a Lender hereunder for all purposes of this Agreement. The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. For the avoidance of doubt, neither the Administrative Agent (in its capacity as Administrative Agent) nor the Revolving Agent (in its capacity as Revolving Agent) shall have any responsibility for maintaining a Participant Register.
10. Any Foreign Lender who purchases or is assigned or participates in any portion of the rights and obligations under this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantocomply with Section 2.09(e).
(e) Any 11. Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons (a "Participant") participating interests entities in or to all or any a portion of its Obligations, its Commitment, rights and obligations under this Agreement and the other rights Loan Documents (including, without limitation, all or a portion of its Commitments and interests of that Lender (the "Originating Lender") hereunder and under the other Loan DocumentsLoans made by it); provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged, ; (ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) and the Borrowers, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans , (ivB) no Lender shall transfer action directly effecting an extension of the due dates or grant any participating a decrease in the rate of interest payable on the Loans or the fees payable under which the Participant has the right to approve any amendment tothis Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any consent or waiver with respect to, Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees Parties agree that each Participant participant shall be entitled to the benefits 137907439v16 of Section 16 (subject 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the requirements Commitments and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) Loans to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph Section 12.07(b) (b) of Section 16; provided it being understood that such Participant shall not be entitled to receive any greater payment the documentation required under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except 2.09(e) shall be delivered to the extent such entitlement participating Lender, and if additional amounts are required to receive a greater payment results from a Change in Law that occurs after be paid pursuant to Section 2.09, to the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlementAdministrative Borrower).
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) 12. Any other provision in this Agreement notwithstanding, any Lender may at any time create pledge or assign a security interest in, or pledge, in all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the or assignment to secure obligations to a Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and loans made to such Federal Reserve Bank may enforce such pledge Lender pursuant to a securitization or security interest in any manner permitted under applicable lawsimilar credit facility (a “Securitization”); provided, provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (. The Loan Parties shall cooperate with respect such Lender and its Affiliates to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)effect the Securitization including, in each case without limitation, by providing such information as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to may be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held reasonably requested by such Lxxxxx. Other than Lender in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion rating of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the RegisterSecuritization.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
(i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Collateral Agent and Administrative Borrower (each such which consent shall not be unreasonably withheld withheld, conditioned or delayed) of:delayed nor shall it be required during the existence of an Event of Default), and
(Aii) all or a portion of its Revolving Credit Commitment and the Revolving Loans made by it with the written consent of each Agent and Administrative BorrowerBorrower (which consent shall not be unreasonably withheld, conditioned or delayed nor shall it be required during the existence of an Event of Default); provided, however, that (i) no written consent of the Collateral Agent or the Administrative Borrower Agent shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and such assignment is continuing or (2) in connection with an assignment to a Person that is a any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender or an Affiliate and (other than natural personsii) no written consent of a Lender; provided further, that the Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an any assignment to a Person that is by a Lender or to another Lender, an Affiliate (other than natural persons) of such Lender or a Related Fund of such Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder, equity holder of Patriot or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least 3 Business Days after the delivery thereof to the extent that the aggregate amount to be assigned to all Collateral Agent (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a “Lender” hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the “Registered Loans”) owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a ”Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Agent and each Lender and any such assignment without the Agents’ and Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other Lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
(i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower (each such which consent shall not be unreasonably withheld withheld, conditioned or delayed) of:), and
(Aii) Administrative Borrower[reserved]; and provided, however, that (x) no written consent of Administrative the Borrower shall be required in connection with any assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender and (1y) if no written consent of the Borrower shall be required during the continuance of an Event of Default under pursuant to Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.19.01(a), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing (f) or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderg); provided further, further that Administrative the Borrower shall be deemed to have consented to a proposed any assignment hereunder, unless it objects shall have objected thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the assigning Lender within five (5) 10 Business Days after having received written notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(iic) Assignments shall be subject to the following additional conditions:
(Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to (I) an assignment or delegation by any a Lender to any other (A) a Lender, an Affiliate of any Lender, such Lender or a Related Fund of such Lender, Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,0001,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment),);
(Dii) each partial assignment shall be made Except as an assignment provided in the last sentence of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) Section 12.07(c)(ii), the parties to each such assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) the Administrative Agent, for its acknowledgment, an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, any promissory note subject to such assignment and related all documentation and other information with respect to the Assigneeassignee that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, have been given including the USA PATRIOT Act, and such parties shall deliver to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Administrative Agent, for the benefit of the Administrative Agent's separate account, a processing and recordation fee in the amount of $3,5003,500 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(Giii) the assignee, if it is not No such assignment shall be made to an Affiliated Lender or to a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Actnatural person.
(bd) From Upon such execution, delivery and acceptance, from and after the effective date that Agent receives the executed specified in each Assignment and Acceptance and recordation on the Register, (A) the assignee thereunder shall become a “Lender” hereunder and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, in addition to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Term Loans (and stated interest thereon) held (the “Registered Loans”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance and all documents required under Section 12.07(c), and subject to the acknowledgment required from the Administrative Agent pursuant to Section 12.07(b) (which acknowledgment of the Administrative Agent must be evidenced by such Lxxxxx. Other than Agent’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, and record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Term Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the Administrative Agent).
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "“Participant Register"”). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Foreign Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell, without the consent of, or notice to, the Borrower or the Administrative Agent, participations to one or more banks or other entities (other than any Affiliated Lender) in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Term Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Term Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Term Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or substantially all of the Collateral (except as otherwise provided in this Agreement and the other Loan Documents) or a release of the Guaranty of Holdings or of all or substantially all of the value of the Guaranty provided by the other (except as otherwise provided in this Agreement and the other Loan Documents). For the avoidance of doubt, a participant may not vote on waivers of Defaults or Events of Default. The Loan Parties agree that each participant shall be entitled to disclose the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Term Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a “Securitization”); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Samples: Credit Agreement (Gannett Co., Inc.)
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), this Agreement with the prior written consent (each such consent not be unreasonably withheld or delayed) ofrespect to:
(Ai) Administrative Borrower; provided, that no all or a portion of its Term Loan Commitment and any Term Loan made by it with the written consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1the Collateral Agent, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(Bii) Agent and, solely in all or a portion of its Revolving Credit Commitment and the case of an assignment of Revolving Loans or Revolver Commitments, Revolving made by it with the written consent of each Agent; provided, however, that no such written consent of the Collateral Agent or the Administrative Agent shall be required if such assignment is in connection with an assignment to a Person that is a Lender any merger, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof); and
(ii) the parties to each such assignment shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender). Notwithstanding anything to the contrary contained in this Section 12.07(c)(ii), a Lender may assign any or all of its rights under the Loan Documents to an Affiliate of such Lender or a Related Fund of such Lender without delivering an Assignment and Acceptance to the Agents or to any other Person (a "Related Party Assignment"); provided, however, that (A) the Borrowers and the Administrative Agent may continue to deal solely and directly with such assigning Lender until an Assignment and Acceptance has been delivered to the Administrative Agent for recordation on the Register, (B) the Agents may continue to deal solely and directly with such assigning Lender until receipt by the Agents of a copy of the fully executed Assignment and Acceptance pursuant to Section 12.07(g), (C) the failure of such assigning Lender to deliver an Assignment and Acceptance to the Agents shall not affect the legality, validity, or binding effect of such assignment, and (D) an Assignment and Acceptance between the assigning Lender and an Affiliate of such Lender or a Related Fund of such Lender shall be effective as of the date specified in such Assignment and Acceptance and recordation on the Related Party Register referred to in the last sentence of Section 12.07(f) below; and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder, Holder or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least 3 Business Days after the delivery thereof to the extent that the aggregate amount to be assigned to all Agents (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Agents and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a "Lender" hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "Register") on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the "Registered Loans") owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent's execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register or the Related Party Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Related Party Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any any, evidencing the same), Borrowers the Agents shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered on the Register as the owner thereof for the purpose of receiving all payments thereon and for all other purposesthereon, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document). The Loan Parties agree that each participant shall be entitled to disclose the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register (its rights under this Agreement to secure obligations of such Lender, including the identity of any Participant pledge or any information relating assignment to secure obligations to a Participant's interest Federal Reserve Bank or loans made to such Lender pursuant to securitization or similar credit facility (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect the Securitization including, without limitation, by providing such information as may be reasonably requested by such Lender in any commitments, loans, letters connection with the rating of credit its Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
Appears in 1 contract
Assignments and Participations. (a) (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, (2) in connection with the Primary Syndication of the Commitments and the Obligations by Xxxxx Fargo if such assignment is to a Person of the type customarily engaged in transactions similar to those set forth herein (provided that Xxxxx Fargo shall consult with Borrower in connection with such Primary Syndication; provided further that if any consent of Borrower is required in connection with the Primary Syndication of the Commitments and the Obligations by Xxxxx Fargo it shall not be unreasonably withheld), or (23) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Swing Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a LenderIssuing Bank.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Diamond Foods Inc)
Assignments and Participations. (i) Subject to Neither the conditions set forth in clause (a)(ii) belowSeller, any Lender of the Guarantors nor the Pledgor may assign assign, delegate or otherwise transfer in any way any of its rights, duties or obligations under this Agreement without the prior written consent of the Purchaser in its discretion and any attempt by the Seller, any of the Guarantors or the Pledgor to assign, delegate or otherwise transfer in any way any of its rights, duties or obligations under this Agreement and/or the other Repurchase Documents without the prior written consent of the Purchaser in its discretion shall be null and void. The Purchaser may sell, transfer, assign, pledge or grant participation interests to any Person in all or any portion of any Transaction, its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) interest in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender all or any portion of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute Purchased Item and/or any other interest of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations Purchaser under this Agreement and the other Loan DocumentsRepurchase Documents (any such entity, such Lender shall cease to be a party hereto and thereto“Transferee”); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender Purchaser shall remain a "Lender" for all purposes give concurrent notice to the Seller of this Agreement and any assignment (the other Loan Documents and the Participant receiving the participating interest in the Obligationsfailure to give such notice, the Commitmentshowever, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder affect the validity or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance enforceability of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provideassignment) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount pursuant to this Section 13.16 shall be issued to the designated assignee(s) or transferee(s). Prior to the registration in respect of assignment or sale Purchased Assets with a minimum Purchase Price of any Loan $5,000,000 (and the registered note, if any evidencing the same), Borrowers shall treat the Person other than in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any (x) an assignment by a Lender of all of the interests then held by the Purchaser (or any portion of its Loans a Transferee), (y) a transfer to an Affiliate of such Lender the Purchaser or a Related Fund Transferee), or (z) an Event of Default). Each of the Seller and the Guarantors agrees to cooperate with the Purchaser in connection with any such Lenderassignment, transfer, pledge, participation or sale, and which assignment is not recorded to enter into such restatements of, and amendments, supplements and other modifications to this Agreement, in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable order to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject give effect to such participations) (the "Participant Register"). A Loan (and the registered noteassignment, if anytransfer, evidencing the same) may be participated in whole pledge, participation or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unsale.
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (Municipal Mortgage & Equity LLC)
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"), ”) with the prior written consent (each such consent not be unreasonably withheld or delayed; it being understood that, without limitation, Administrative Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, Administrative Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2) in connection with an assignment to a Person that is a Lender or Lender, an Affiliate (other than natural persons) of a Lender, or a Related Fund of such Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
(B) Agent andAgent, solely in the case of an assignment of Revolving Loans or Revolver CommitmentsSwing Lender, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderand Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to (i) so long as no Event of Default has occurred and is continuing, an Ineligible Institution, (ii) so long as no Event of Default has occurred and is continuing, a Competitor, or (iii) a natural person,
(B) no assignment may be made to a Loan Party or an any Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),;
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's Lender’s rights and obligations under this Agreement,;
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers Administrative Borrower and Agent (and Revolving Agent if applicable) by such Lxxxxx Lender and the Assignee,.
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's ’s separate account, a processing fee in the amount of $3,500, ; and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "“Administrative Questionnaire") and all information and other documents required under the Patriot Act”).
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party Borrower or the performance or observance by any Loan Party Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's ’s receipt of the required processing fee, if applicable, and delivery Agent’s receipt of notice to the assigning Lender executed Assignment and Acceptance pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "“Originating Lender"”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "“Lender" ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "“Lender" ” hereunder or under the other Loan Documents and the Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease decreases the amount or postpone postpones the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to an Ineligible Institution, a Competitor, or a natural person, (vi) no participation shall be sold to a Loan Party or an any Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party Parent and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un
Appears in 1 contract
Samples: Credit Agreement (Aventine Renewable Energy Holdings Inc)
Assignments and Participations. (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "“Assignee"”), with the prior written consent (each such consent not be unreasonably withheld or delayed) of:
(A) Administrative Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender, or a Related Fund; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) 5 Business Days after having received notice thereof; and
and (B) Agent andAgent, solely in the case of an assignment of Revolving Loans or Revolver Commitmentseach Swing Lender, Revolving Agent; provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lenderand Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
: (A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Competitor, or (ii) to a natural person,
, (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.of
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "“Lender" ” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's ’s obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unfinancial
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders’ prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to:
(i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Borrower (each such consent not to be unreasonably withheld or delayedwithheld) of:and each Agent, and
(Aii) Administrative Borrowerall or a portion of its Revolving Credit Commitment and the Revolving Loans made by it with the written consent the Borrower (such consent not to be unreasonably withheld) and each Agent; provided, however, that no written consent of the Borrower, the Collateral Agent or the Administrative Borrower Agent shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2A) in connection with an any assignment by a Lender to a Person that is a Lender, an Affiliate of such Lender or an Affiliate a Related Fund of such Lender or (B) if such assignment is in connection with any merger, consolidation, sale, transfer, or other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of such Lender; provided further, that Administrative under this Section 12.07(b), the consent of the Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall not be required in connection with if an assignment to a Person that Event of Default has occurred and is a Lender or an Affiliate (other than natural persons) of a Lendercontinuing.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender’s Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Administrative Agent, for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Administrative Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender) and all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering or terrorist financing rules and regulations, including the USA PATRIOT Act; and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holder, Holder (or other equity holder of Holdings) or any of their respective Affiliates or (B) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (B).
(Cd) Upon such execution, delivery and acceptance, from and after the amount recordation date of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agenton the Register, , (A) the assignee thereunder shall be become a “Lender” hereunder and, in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender addition to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's Xxxxxx’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintainedmaintained at one of its offices, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "“Register"”) on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereonthereon)owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior written notice.
(g) held Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Borrower, Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent and Borrower must be evidenced by such Lxxxxx. Other than Agent’s or Borrower’s execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such a Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register or the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of Borrowersthe Borrower, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Loan that is the subject to such participations) of the participation (the "”Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's ’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder the Code or Treasury Regulations, including without limitation, Section 5f.103-1(c) of the United States Treasury Regulations. A Loan (and the note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each note shall expressly so provide). Any participation of such Loan (and the note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. The Participant Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any Person who purchases or is assigned or participates in any portion of such Loan shall comply with Section 2.10(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender’s obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents; and (iii) a participant shall not be entitled to require such Lender to take or omit to take any action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in
Appears in 1 contract
Assignments and Participations. (ia) Subject to the conditions set forth in clause (a)(ii) below, any Each Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee")may, with the prior written consent (each such consent of the Borrower and the Administrative Agent, which consents shall not be unreasonably withheld or delayed) of:
delayed and, in the case of the Borrower, (A) Administrative Borrower; provided, that no consent of Administrative Borrower shall not be required (1) if while an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing and (B) shall be deemed given if the Borrower shall not have objected within 10 Business Days following its receipt of notice of such assignment (and, within five days after demand by the Borrower (with a copy of such demand to the Administrative Agent) to (i) any Defaulting Lender, (ii) any Lender that has made a demand for payment pursuant to Section 2.10 or 2.13, (iii) any Lender that has asserted pursuant to Section 2.07(b) or 2.11 that it is impracticable or unlawful for such Lender to make Eurocurrency Rate Advances or (2iv) in connection with any Lender that fails to consent to an assignment amendment or waiver hereunder for which consent of all Lenders (or all affected Lenders) is required and as to a Person that is a which the Required Lenders shall have given their consent, such Lender will), assign to one or an Affiliate more Persons (other than natural persons) all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a Lenderportion of its Commitment and the Advances owing to it); provided furtherprovided, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; andhowever, that:
(BA) Agent and, solely such consent shall not be required in the case of an assignment to any other Lender or an Affiliate of Revolving Loans or Revolver Commitments, Revolving any Lender; provided that notice thereof shall have been given to the Borrower and the Administrative Agent; provided, that no ;
(B) each such consent assignment shall be required of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(C) except in connection with the case of an assignment to a Person that is that, immediately prior to such assignment, was a Lender or an Affiliate (other than natural persons) assignment of all of a Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party’s rights and obligations under this Agreement, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations Commitment of the assigning Lender hereunder and under the other Loan Documents subject being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment is delivered to Agentassignment) shall in no event be in a minimum amount (unless waived by Agent) less than $25,000,000 or an integral multiple of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),in excess thereof;
(D) each partial such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower with the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a proportionate part portion of all the assigning Lxxxxx's such rights and obligations made concurrently with another such assignment or other such assignments that, in the aggregate, cover all of the rights and obligations of the assigning Lender under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,;
(F) no Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section 8.07(a)), (1) (except in the case of an assignment of the type described in clause (iv) above to the extent such Default would no longer be continuing after giving effect to the relevant amendment or waiver) so long as a Default shall have occurred and be continuing and (2) unless waived by Agentand until such Lender shall have received one or more payments from one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the assigning date of payment of such principal amount, and from the Borrower or one or more Eligible Assignees in an aggregate amount equal to all other amounts accrued to such Lender under this Agreement (including, without limitation, any amounts owing under Sections 2.10, 2.13 or Assignee has 8.04(c)) and (3) unless and until the Borrower shall have paid (or caused to Agent, for Agent's separate account, be paid) to the Administrative Agent a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the amount case of $3,500, and
(G) the any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.; and
(bG) From the parties to each such assignment (other than, except in the case of a demand by the Borrower pursuant to this Section 8.07(a), the Borrower) shall execute and after deliver to the date that Agent receives Administrative Agent, for its acceptance and recording in the executed Register, an Assignment and Acceptance and, if applicablesuch assignment does not occur as a result of a demand by the Borrower pursuant to this Section 8.07(a) (in which case the Borrower shall pay the fee required by subclause (3) of this Section 8.07(a)(iv)(F)), payment a processing and recordation fee of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and provided further that in the event that, in connection with a demand by the Borrower pursuant to this Section 8.07(a), the assignor shall not execute and deliver the relevant Assignment and Acceptance within one Business Day of the required processing feeBorrower’s request, such assignor shall be deemed to have executed and delivered such Assignment and Acceptance. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (ix) the Assignee assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the assigning Lender assignor thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement Agreement, except that such assigning Lender shall continue to be entitled to the benefit of Section 8.04(a) and with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's ’s rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: :
(i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, ,
(ii) validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iiiii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party the Borrower or the performance or observance by any Loan Party the Borrower of any of its obligations under this Agreement or any other Loan Document instrument or document furnished pursuant hereto, ;
(iiiiv) such Assignee assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section
4.01 (e) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ;
(ivv) such Assignee assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, ;
(vvi) such Assignee assignee confirms that it is an Eligible Assignee;
(vii) such assignee appoints and authorizes the Administrative Agent or Revolving Agent, as applicable, to take such actions action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent or Revolving Agent, as applicable, by the terms hereof and thereofhereof, together with such powers and discretion as are reasonably incidental thereto, and ; and
(viviii) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) accept such Assignment and Acceptance, record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower.
(d) Immediately upon The Administrative Agent's receipt , acting solely for this purpose as the agent of the required processing feeBorrower, if applicableshall maintain at its address referred to in Section 8.02
(a) a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and delivery principal amount (and stated interest) of notice the Advances owing to, each Lender from time to time (the assigning Lender pursuant to Section 13.1(b“Register”), this Agreement . The entries in the Register shall be deemed to be amended to the extentconclusive and binding for all purposes, but only to the extentabsent manifest error, necessary to reflect the addition of the Assignee and the resulting adjustment Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of the Commitments arising therefromthis Agreement. The Commitment allocated Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to each Assignee shall reduce such Commitments of the assigning Lender pro tantotime upon reasonable prior notice.
(e) Any Each Lender may at any time sell participations to one or more commercial banks, financial institutions, banks or other Persons entities (a "Participant"other than the Borrower or any of its Affiliates or any natural person) participating interests in or to all or any a portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement (including, without limitation, all or a portion of its Commitment and the Advances owing to it) without the consent of the Administrative Agent or the Borrower; provided, however, that:
(i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment) shall remain unchanged, ;
(ii) the Originating such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, ;
(iii) Borrowerssuch Lender shall remain the Lender of any such Advance for all purposes of this Agreement;
(iv) the Borrower, Agent, Revolving Agent, the Agents and the other Lenders shall continue to deal solely and directly with the Originating such Lender in connection with the Originating such Lender's ’s rights and obligations under this Agreement and the other Loan Documents, Agreement; and
(ivv) no Lender participant under any such participation shall transfer or grant have any participating interest under which the Participant has the right to approve any amendment toor waiver of any provision of this Agreement, or any consent to any departure by the Borrower herefrom or waiver with respect to, this Agreement or any other Loan Documenttherefrom, except to the extent that such amendment toamendment, waiver or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment principal of, or reduce the amount ofstated rate of interest on, the interest Advances or the stated rate at which any fees payable to such Participant through such Lender (or any other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans)calculated, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or any other amounts payable hereunder, in each case to the extent subject to such participation. Each Lender shall promptly notify the Borrower after any sale of a participation by such Lender pursuant to this Section 8.07(e); provided that the failure of such Lender to give notice to the Borrower as provided herein shall not affect the validity of such participation or impose any obligations on such Lender or the applicable participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrower, shall maintain, or cause to be maintained, maintain a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (participant and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount amounts (and stated interest thereoninterest) of each participant’s interest in the portion of such Loans that is subject to such participations) Advances or other obligations under the Loan Documents (the "“Participant Register"”). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No ; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant participant or any information relating to a Participant's participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form ununder Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender as more fully set forth in Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation and the Advances owing to it) to secure obligations of such Lender, including, without limitation, any pledge or assignment to secure obligations in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any central bank having jurisdiction over such Lender.
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and permitted assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under the this Agreement with respect to: (i) all or a portion of its Term Loan Documents (including the Obligations owed to Commitment and any Term Loan made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent of the Administrative Agent and the Administrative Borrower, and (ii) all or a portion of its Revolving Credit Commitment and any Revolving Loans made by it with the written consent of each such consent not be unreasonably withheld or delayed) of:
(A) Agent and the Administrative Borrower; provided, that no (A) the consent of any Agent shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, such Agent may withhold, condition or deny such consent in its sole discretion)) and (B) the consent of the Administrative Borrower (1) shall not be unreasonably withheld, conditioned or delayed (unless the proposed assignee is a Disqualified Lender, in which case, so long as no Event of Default has occurred and is continuing, the Administrative Borrower may withhold, condition or deny such consent in its sole discretion), (2) shall be deemed to have been given by the Administrative Borrower if the Administrative Borrower has not positively denied such consent within 5 Business Days of written request therefor and (3) shall not be required during the continuance of an Event of Default; provided, further, that no written consent of the Agents or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2x) in connection with an any assignment to a Person that is by a Lender to any Agent or an any Lender, any Affiliate of any Agent or any Lender or any Related Fund of any Agent or any Lender or (other than natural personsy) of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed if such assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
(B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall be required is in connection with an assignment to a Person that is a Lender any merger, amalgamation, consolidation, sale, transfer, or an Affiliate (other than natural persons) disposition of a all or any substantial portion of the business or loan portfolio of any Lender.
(iic) Assignments shall be subject to the following additional conditions:
: (Ai) no assignment may be made to a natural person,
(B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each Each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in an amount which is at least $1,000,000 or a minimum amount (unless waived by Agent) multiple of $5,000,000 100,000 in excess thereof (or the remainder of such Xxxxxx's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (IA) an assignment Agent or delegation by any Lender to any other a Lender, an Affiliate of any Lender, an Agent or a Lender or a Related Fund of such Lender, an Agent or a Lender or (IIB) a group of new Lenders, each of which whom is an Affiliate or Related Fund of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each partial assignment shall be made as an assignment of 1,000,000 or a proportionate part of all the assigning Lxxxxx's rights and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount multiple of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire 100,000 in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and theretoexcess thereof); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(a).
(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary agent on behalf of Bxxxxxxxx, shall maintain, or cause to be maintained, a register (collectively, the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof and stated interest thereon) held by such Lxxxxx. Other than in connection with an assignment by a Lender of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a Lender sells participations in the Loan, such Lxxxxx, as a non-fiduciary agent on behalf of Borrowers, shall maintain (or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register"). A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form un;
Appears in 1 contract
Assignments and Participations. (ia) This Agreement and the other Loan Documents shall be binding upon and inure to the benefit of each Loan Party and each Agent and each Lender and their respective successors and assigns; provided, however, that none of the Loan Parties may assign or transfer any of its rights hereunder or under the other Loan Documents without the prior written consent of each Lender and any such assignment without the Lenders' prior written consent shall be null and void.
(b) Subject to the conditions set forth in clause (a)(iic) below, any each Lender may assign and delegate to one or more other lenders or other entities all or any a portion of its rights and duties obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment and the Loan Documents (including the Obligations owed to Revolving Loans made by it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (of each such consent not be unreasonably withheld or delayed) of:
(A) Agent and the Administrative Borrower; provided, however, that (i) no written consent of any Agent or the Administrative Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and such assignment is continuing or (2) in connection with an assignment to a Person that is a any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender or an Affiliate and (other than natural personsii) the written consent of a Lender; provided further, that the Administrative Borrower (A) shall not be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within five (5) Business Days after having received notice thereof; and
unreasonably withheld, conditioned or delayed, (B) Agent and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent shall not be required in connection with an any assignment by a Lender to a Person that is a Lender, an Affiliate of such Lender or a Related Fund of such Lender, (C) shall not be required upon the occurrence and during the continuance of an Affiliate Event of Default and (other than natural personsD) shall be deemed given if the Administrative Borrower fails to respond within 5 Business Days of the date on which the Administrative Borrower shall have received a request from the applicable Lender.
(iic) Assignments shall be subject to the following additional conditions:
(i) Each such assignment shall be in an amount which is at least $5,000,000 or a multiple of $1,000,000 in excess thereof (or the remainder of such Lender's Commitment) (except such minimum amount shall not apply to an assignment by a Lender to (A) no a Lender, an Affiliate of such Lender or a Related Fund of such Lender or (B) a group of new Lenders, each of whom is an Affiliate or Related Fund of each other to the extent the aggregate amount to be assigned to all such new Lenders is at least $5,000,000 or a multiple of $1,000,000 in excess thereof);
(ii) The parties to each such assignment may shall execute and deliver to the Collateral Agent (and the Administrative Agent, if applicable), for its acceptance, an Assignment and Acceptance, together with any promissory note subject to such assignment and such parties shall deliver to the Collateral Agent, for the benefit of the Collateral Agent, a processing and recordation fee of $5,000 (except the payment of such fee shall not be required in connection with an assignment by a Lender to a Lender, an Affiliate of such Lender or a Related Fund of such Lender); and
(iii) No such assignment shall be made to a natural person,
(BA) no assignment may be made to a Loan Party or an Affiliate of a any Loan Party, any Permitted Holderequity holder of the Parent or any of their respective Affiliates, (B) any Disqualified Institution so long as no Specified Event of Default has occurred and is continuing, (C) any Defaulting Lender or any of its Affiliates, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,Persons described in this clause (C), or (D) any natural Person.
(Cd) Upon such execution, delivery and acceptance, from and after the amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to effective date specified in each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) and recordation on the Register, which effective date shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender at least 3 Business Days after the delivery thereof to the extent that the aggregate amount to be assigned to all Collateral Agent (or such new Lenders is at least $5,000,000),
(D) each partial assignment shorter period as shall be made as an assignment of a proportionate part of all agreed to by the assigning Lxxxxx's rights Collateral Agent and obligations under this Agreement,
(E) the parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment), together with payment instructions(A) the assignee thereunder shall become a "Lender" hereunder and, addresses, and related information with respect in addition to the Assignee, have been given to Borrowers and Agent (and Revolving Agent if applicable) by such Lxxxxx and the Assignee,
(F) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500, and
(G) the assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all information and other documents required under the Patriot Act.
(b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder held by it immediately prior to such effective date, have the rights and obligations hereunder that have been assigned to it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under the Loan Documents, Acceptance and (iiB) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections 10.3 and 16) and be released from any future its obligations under this Agreement (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan DocumentsAgreement, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15 and Section 17.9(ahereto).
(ce) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, ; (ii) such the assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or any of its Subsidiaries or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, ; (iii) such Assignee assignee confirms that it has received a copy of this AgreementAgreement and the other Loan Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, ; (iv) such Assignee assignee will, independently and without reliance upon Agentthe assigning Lender, such assigning Lender any Agent or any other Lender, Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, Agreement and the other Loan Documents; (v) such Assignee assignee appoints and authorizes Agent or Revolving Agent, as applicable, the Agents to take such actions action as agents on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, the Agents by the terms hereof and thereof, together with such powers as are reasonably incidental hereto and thereto, ; and (vi) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the other Loan Documents are required to be performed by it as a Lender.
(d) Immediately upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2 (it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16; provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower has specifically consented to such greater entitlement.
(f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest inThe Administrative Agent shall, or pledge of, its rights under and interest in acting solely for this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Agent (with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case purpose as a non-fiduciary agent on behalf of Bxxxxxxxxthe Borrowers, shall maintain, or cause to be maintainedmaintained at the Payment Office, a copy of each Assignment and Acceptance delivered to and accepted by it and a register (collectively, the "Register") on which it enters for the name and address of each Lender as the registered owner recordation of the applicable Loans (names and addresses of the Lenders and the Commitments of, and the principal amount thereof of the Loans (and stated interest thereon) held (the "Registered Loans") owing to each Lender from time to time. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(g) Upon receipt by the Administrative Agent of a completed Assignment and Acceptance, and subject to any consent required from the Administrative Agent or the Collateral Agent pursuant to Section 12.07(b) (which consent of the applicable Agent must be evidenced by such Lxxxxx. Other than Agent's execution of an acceptance to such Assignment and Acceptance), the Administrative Agent shall accept such assignment, record the information contained therein in connection the Register (as adjusted to reflect any principal payments on or amounts capitalized and added to the principal balance of the Loans and/or Commitment reductions made subsequent to the effective date of the applicable assignment, as confirmed in writing by the corresponding assignor and assignee in conjunction with an delivery of the assignment by to the Administrative Agent) and provide to the Collateral Agent a Lender copy of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender the fully executed Assignment and Acceptance.
(ih) a A Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any ). Any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
(i) In the event that a If any Lender sells participations in the a Registered Loan, such LxxxxxLender shall, acting for this purpose as a non-fiduciary agent on behalf of the Borrowers, shall maintain (maintain, or cause to be maintained) , a register register, on which it enters the name and address of all participants in the Registered Loans held by it (and the principal amount (and stated interest thereon) of the portion of such Loans the Registered Loan that is the subject to such participations) of the participation (the "Participant Register"). A Registered Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation on the Participant Register (and each registered note shall expressly so provide). Any participation of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No The Participant Register shall be available for inspection by the Administrative Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(j) Any non-U.S. Lender who purchases or is assigned or participates in any portion of such Registered Loan shall comply with Section 2.09(d).
(k) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Loans made by it); provided, that (i) such Lender's obligations under this Agreement (including without limitation, its Commitments hereunder) and the other Loan Documents shall remain unchanged; (ii) such Lender shall have remain solely responsible to the other parties hereto for the performance of such obligations, and the Borrowers, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents; (iii) a participant shall not be entitled to require such Lender to take or omit to take any obligation action hereunder except (A) action directly effecting an extension of the maturity dates or decrease in the principal amount of the Loans, (B) action directly effecting an extension of the due dates or a decrease in the rate of interest payable on the Loans or the fees payable under this Agreement, or (C) actions directly effecting a release of all or a substantial portion of the Collateral or any Loan Party (except as set forth in Section 10.08 of this Agreement or any other Loan Document); and (iv) no Person shall sell a participation interest to disclose any Person that is a Disqualified Institution so long as no Specified Event of Default has occurred and is continuing. The Loan Parties agree that each participant shall be entitled to the benefits of Section 2.09 and Section 2.10 of this Agreement with respect to its participation in any portion of the Commitments and the Loans as if it was a Lender; provided, that such participant is not entitled to receive more than what Lenders could claim pursuant to Sections 2.09 and 2.10, except to the extent such person is entitled to receive a greater payment results from a change in law that occurs after the participant acquired the applicable participation.
(l) Any Lender may at any time pledge or assign a security interest in all or any portion of the Participant Register its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or loans made to, or other indebtedness issued by, such Lender pursuant to a securitization transaction (including any structured warehouse credit facility, collateralized loan obligation transaction or similar facility or transaction, and including any further securitization of the identity indebtedness or equity issued under such a transaction) (a "Securitization"); provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any Participant such pledgee or assignee for such Lender as a party hereto. The Loan Parties shall cooperate with such Lender and its Affiliates to effect a Securitization, including, without limitation, by providing such information as may be reasonably requested by such Lender in connection with the rating of its Loans or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form unSecuritization.
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