Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent may continue to deal solely and 68 directly with 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, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent. (b) From and after the date that Agent notifies the assignor Lender that it has received an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee. (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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69 (d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. (f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business. (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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 4 contracts
Samples: Loan and Security Agreement (Network Plus Corp), Loan and Security Agreement (Network Plus Corp), Loan and Security Agreement (Network Plus Corp)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 4 contracts
Samples: Loan and Security Agreement (Swank, Inc.), Loan and Security Agreement (Swank, Inc.), Loan and Security Agreement (OVERSTOCK.COM, Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.8 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 3 contracts
Samples: Loan and Security Agreement (Viskase Companies Inc), Loan and Security Agreement (Viskase Companies Inc), Loan and Security Agreement (Viskase Companies Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower Borrowers and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower Borrowers and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrowers) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business. Prior to making any such disclosure of any such documents or information, the Lender shall cause such prospective assignee or participant to enter into a confidentiality agreement containing confidentiality provision substantially similar to those contained in Section 16.17(d).
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 2 contracts
Samples: Loan and Security Agreement (Big Dog Holdings Inc), Loan and Security Agreement (Big Dog Holdings Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent Borrowers by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower Borrowers an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrowers with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrowers' receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's businessBorrowers' businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. The foregoing to the contrary notwithstanding, no such pledge shall relieve Lender from any of its obligations hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Majestic Investor Capital Corp), Loan and Security Agreement (Majestic Investor Capital Corp)
Assignments and Participations. (a) Any With the prior written consent of Borrowers, which consent of Borrowers shall not be unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender; provided that Borrowers shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agents within 5 Business Days after having received notice thereof, and with the prior written consent of Agents, which consents of Agents shall not be unreasonably withheld, delayed or conditioned, and shall not be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than individuals) of a Lender, any Lender may assign and delegate to one or more Eligible Transferees assignees (each, an “Assignee”; provided, however, that no Loan Party or any other assignee, if such assignment is in connection with Affiliate of a merger, consolidation, sale, transfer, or other disposition of Loan Party shall be permitted to become an Assignee) all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Revolver Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by Agents) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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); provided, however, that Borrower, Agent, Borrowers and S&A Agent Agents may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower Borrowers and Agent Agents by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower Borrowers and Agent Agents an Assignment and Acceptance and Agents have notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and ("Assignment and Acceptance"iii) unless waived by US Agent, the assigning Lender or Assignee has paid to US Agent for US Agent’s separate account a processing fee in form and substance satisfactory to Agentthe amount of $5,000.
(b) From and after the date that US Agent notifies the assignor assigning Lender (with a copy to Borrowers) that it has received an executed Assignment and AcceptanceAcceptance 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 assignor 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 Section 11.3 hereof10.3) and be released from its any future obligations to make Advances 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 obligations under Section 15 and such assignment shall effect a novation between Borrower and the AssigneeSection 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: (1i) 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; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent Agents to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or S&A Agent, as applicableAgents, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69.
(d) Immediately upon US Agent’s receipt of the required processing fee, if applicable, and acknowledgment by Agent delivery of a fully executed Assignment and Acceptancenotice 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 Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the all or any portion of its Obligations, the its Revolver Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, AgentAgents, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; Lender (other than a waiver of default interest), or (E) change decreases the amount or postpones the due dates of scheduled principal repayments or prepayments or premiums; (v) premiums payable to such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if through such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of BorrowerLender, and (viiiv) all amounts payable by Borrower 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-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 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, AgentAgents, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Domestic Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participationparticipation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or caused to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Advances (and the principal amount thereof ad stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Advances 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 Advances 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 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.
(j) US 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 any Borrowers from time to time as such Borrowers may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Arc Document Solutions, Inc.), Credit Agreement (American Reprographics CO)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the sole benefit of Borrower that, so long as no Event of Default has occurred and Acceptance is continuing, Lender shall ("Assignment x) retain at least 50.1 percent of the Obligations and Acceptance"commitment to make Advances under Section 2.1 of this Agreement, and (y) not assign any ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time, provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees shall not be applicable if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. The foregoing to the contrary notwithstanding, no such pledge shall relieve Lender from any of its obligations hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Peninsula Gaming Corp), Loan and Security Agreement (Peninsula Gaming Co LLC)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced processing fee and the satisfaction of the other conditions in Section 13.1(a), (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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 16 and Section 16.7 of this Agreement.
(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: (1i) 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; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 2 contracts
Samples: Credit Agreement (Altra Industrial Motion, Inc.), Credit Agreement (TB Wood's INC)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced processing fee and the satisfaction of the other conditions in Section 13.1(a), (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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 16 and Section 16.7 of this Agreement.
(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: (1i) 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; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and AcceptanceAcceptance and the satisfaction of the other conditions in Section 13.1(a), 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the all or any portion of its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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 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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their respective Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and their respective Restricted 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent (on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of each Advance held by such Lender. Other than in connection with an assignment by a Lender of all or any portion of its Commitment to an Affiliate of such Lender (i) a Registered Loan may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register and (ii) any assignment or sale of all or part of such Registered Loan may be effected only by registration of such assignment or sale on the Register, together with the surrender of any 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 note, if any, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new 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, Borrowers shall treat the Person in whose name such Loan 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 Commitment to an Affiliate 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.
Appears in 2 contracts
Samples: Credit Agreement (Altra Industrial Motion, Inc.), Credit Agreement (Boston Gear LLC)
Assignments and Participations. (a) Any Lender Subject to the prior written consent of the Agent and the Borrower, such consent not to be unreasonably withheld, each Bank may assign and delegate to one or more Eligible Transferees any financial institution (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of the "ASSIGNEE") all or any substantial a portion of the business its rights and obligations under this Agreement (including, without limitation, all or loan portfolio a portion of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the its Commitments and the other rights and obligations of such Lender hereunder and under the other Loan DocumentsNote held by it); PROVIDED, in a minimum amount of $5,000,000; provided, howeverHOWEVER, that Borrower, the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and S&A Agent may continue to deal solely and 68 directly with such Lender recording in connection with the interest so assigned to an Assignee until (i) written notice of such assignmentRegister, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") Agreement in form and substance satisfactory to Agent.
the Agent (bthe "ASSIGNMENT AND ACCEPTANCE"), together with any Note subject to such assignment and a processing fee of $2,500; and FURTHER PROVIDED HOWEVER, that (i) From each such assignment shall be of a constant, and after not a varying, percentage of all of the date that assigning Bank's rights and obligations under this Agreement, and (ii) the amount of the Commitments so assigned shall equal or exceed the lesser of (x) $10,000,000, or (y) the remaining Commitments held by the assigning Bank. Upon such execution, delivery, acceptance, and recordation by the Agent notifies the assignor Lender that it has received an executed of such Assignment and Acceptance, from and after the effective date specified in each Assignment and Acceptance, which effective date shall be the date on which such Assignment and Acceptance is accepted by the Agent, (iA) 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 have the rights and obligations of a Lender Bank under the Loan Documents, and (iiB) the Bank assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement the Loan Documents (and and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning LenderBank's rights and obligations under this Agreement and the other Loan Documents, such Lender Bank shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee.
(cb) By executing and delivering an Assignment and Acceptance, the assigning Lender Bank assignor thereunder and the Assignee thereunder (by execution and delivery of the Assignment and Acceptance pursuant to this Section 10.07) confirm to and agree with each other and the other parties hereto as follows: (1i) other than as provided in such Assignment and Acceptance, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency sufficiency, or value of this Agreement any Loan Document or any other Loan Document instrument or document furnished pursuant heretothereto; (2ii) such assigning Lender Bank makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its respective obligations under this Agreement any Loan Document or any other Loan Document instrument or document furnished pursuant heretothereto; (3iii) such Assignee confirms that it has received a copy of this Agreementthe Loan Documents, together with copies of the financial statements referred to in Section 5.07 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; (4iv) such Assignee willAssignee, independently and without reliance upon Agent, S&A the Agent, such assigning Lender Bank, or any other Lender, Bank and based on such documents and information as it shall deem appropriate at the time, will continue to make its own credit decisions in taking or not taking action under this Agreement; (5v) such Assignee appoints and authorizes Agent and S&A the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement any Loan Document as are delegated to the Agent or S&A Agent, as applicable, by the terms hereofthereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement any Loan Document are required to be performed by it as a LenderBank.
(c) The Agent shall maintain at its address referred to in Section 10.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and the Commitment of, and principal amount of the Borrowings owing to, each Bank from time to time (the "REGISTER"). 69The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent, and the Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all purposes of the Loan Documents. The Register shall be available for inspection by the Borrower or any Bank at any reasonable time and from time to time upon reasonable prior notice.
(d) Immediately upon Upon its receipt of an Assignment and acknowledgment Acceptance executed by Agent an assigning Bank, together with any Note subject to such assignment and a processing fee of a fully executed $2,500, the Agent, if such Assignment and Acceptance has been completed shall (i) accept such Assignment and Acceptance, this Agreement shall be deemed to be amended ; (ii) record the information contained therein in the Register; and (iii) give prompt notice thereof to the extentBorrower. Simultaneously upon its receipt of such notice, but only the Borrower at its own expense, shall execute and deliver to the extentAgent in exchange for each surrendered Note a new Note payable to the order of such Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, necessary if the assigning Bank has retained Commitments hereunder, new Notes payable 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 tantoBank in an amount equal to the Commitments retained by it hereunder. The new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of EXHIBIT F. Upon receipt by the Agent of each such new Note conforming to the requirements set forth in the preceding sentences, the Agent shall return to the Borrower each such surrendered Note marked to show that each such surrendered Note has been replaced, renewed, and extended by such new Note.
(e) Any Lender Each Bank may at any time, with the written consent of S&A Agent, sell participations to one or more commercial banks, financial institutions, institutions in or other Persons (to all or a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests portion of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Notes held by it), PROVIDED, HOWEVER, that an agreement in respect of a participation hereunder may not restrict such Bank's voting rights hereunder, other Loan Documentsthan in respect of a change in the principal of and interest on a Note, (iv) no Lender shall transfer or grant any participating interest under which the Participant has Collateral securing the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to Note and 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 each such Note. A participant holding an interest in a Note shall be entitled to the Obligations hereunder benefits of Sections 2.07, 2.10, 3.01 and 3.03 of this Agreement; PROVIDED, FURTHER, that no participant shall be entitled to recover under the aforedescribed provisions an amount in excess of the proportionate share 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 a material portion participant holds of the Collateral or guaranties (except original aggregate principal amount hereunder to which 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 selling Bank would otherwise 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesentitled.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 2 contracts
Samples: Credit Agreement (First Investors Financial Services Group Inc), Credit Agreement (First Investors Financial Services Group Inc)
Assignments and Participations. (a) Any Lender The Lessee may not assign and its rights or delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition its obligations under this Agreement without the prior written consent of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedInstrument Holders. The foregoing shall not, however, that Borrower, Agent, and S&A Agent may continue be deemed to deal solely and 68 directly with such Lender in connection with limit Lessee's rights under the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses and related information Lease with respect to the AssigneeProperty, shall have been given including the right to Borrower and Agent by such Lender and assign to other parties that constitute "Lessee" under the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to AgentLease.
(b) From Each Instrument Holder may assign all or a portion of the Instruments then held by it and its rights and obligations under this Agreement and the other Transaction Documents to another bank or financial institution approved by Lessee, which approval shall not be unreasonably withheld or delayed. The parties to each such assignment shall execute and deliver to the Agent for its acceptance and recording in the Register (as defined in the Declaration of Trust) an "Assignment Agreement" (herein so-called) in substantially the form attached hereto as Exhibit "A". Upon such execution, delivery, acceptance and recording, from and after the effective date that Agent notifies specified in each Assignment Agreement (which effective date shall be at least five (5) Business Days after the assignor Lender that it has received an executed execution of such Assignment and AcceptanceAgreement), (ix) the Assignee assignee thereunder shall be a party hereto and(the "Assignee") shall, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptanceit, shall have the rights and obligations of an Instrument Holder hereunder and a Lender Holder under the Loan Documents, Transaction Documents arising subsequent to such assignment and (iiy) the assignor Lender thereunder (the "Assignor") 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 Acceptanceit, relinquish its rights (except other than any rights to indemnification it may have hereunder under the Transaction Documents) under this Agreement with respect to Section 11.3 hereofthe Instruments (or interests therein) assigned. No Assignee of an Instrument or an interest therein shall become a "Purchaser" hereunder nor shall any Assignee have any Commitment for Advances hereunder as a result of such assignment, and no Purchaser shall be released from its obligations to make Advances under this Agreement (and in the case any unfunded Commitment hereunder as a result of an Assignment and Acceptance covering all or assignment of the remaining Instruments then held by such Purchaser. Any Advance made by a Purchaser against its Instruments after the assignment of an interest in such Instrument to a third party shall be deemed to have been made by such Purchaser against the portion of the Instrument that is still held by the Purchaser in question. No Assignee of an assigning Lender's Instrument or an interest therein shall acquire any greater rights and obligations under this Agreement and with respect to or arising out of such Instrument therein than were available to the original Holder thereof (or would be available to such original Holder if it were the then Holder thereof). Lessee shall not be responsible for any costs, expenses or other Loan Documents, such Lender shall cease to be a party hereto and thereto), and such charges in connection with any assignment shall effect a novation between Borrower and the Assigneehereunder.
(c) By executing and delivering an Assignment and AcceptanceAgreement, the assigning Lender Assignor thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1i) other than as provided in such Assignment and Acceptance, such assigning Lender Assignor 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 and the other Transaction Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement Agreement, the other Transaction Documents or any other Loan Document instrument or document furnished pursuant hereto; (2ii) such assigning Lender Assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower the Lessee or the performance or observance by Borrower the Lessee of any of its obligations under this Agreement or any other Loan Document Transaction Document, any other instrument or document furnished pursuant hereto; (3iii) 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 with respect to enter entering into such Assignment Agreement; and Acceptance; (4iv) such Assignee will, independently and without reliance upon the Lessee, the Agent, S&A Agentthe Trustee, such assigning Lender Assignor or any other Lender, Instrument Holder 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent Each Instrument Holder may sell participations (as opposed to assignments of a fully executed Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition Instruments or assignments 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.
(epartial interests in Instruments) Any Lender may at any time, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, banks or other Persons (entities in or to all or a "Participant") participating interests in portion of the Obligations, the Commitment, Instruments then held by it and its rights and obligations under this Agreement and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Transaction Documents; provided, however, that (i) such Instrument Holder shall remain the originating Lender's obligations Holder of any such Instrument for all purposes under this Agreement shall remain unchangedand the other Transaction Documents and the Lessee, (ii) the originating Lender shall remain solely responsible for Trustee, the performance of such obligations, (iii) Borrower, Agent, Agent and S&A Agent the other Instrument Holders shall continue to deal solely and directly with the originating Lender such Instrument Holder in connection with the originating Lendersuch Instrument Holder's rights and obligations under this Agreement and the other Loan Documents, Agreement; (ivii) no Lender participant shall transfer or be entitled to receive any greater payment than such Instrument Holder would have been entitled to receive with respect to the rights participated except as a result of circumstances arising after the date of such participation to the extent that such circumstances affect other Instrument Holders and participants generally; and (iii) no Instrument Holder shall grant any participating interest under which a participation that conveys to the Participant has participant the direct right to approve any amendment to, vote or any consent or waiver with respect to, receive notices under 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise Transaction Documents in respect of the Obligations. No Participant shall have the right to 70 participate directly Instrument in the making of decisions by the Lenders among themselveswhich such participant holds a participation.
(fe) In Any Instrument Holder may, in connection with any such assignment or participation or proposed assignment or participationparticipation pursuant to this Section 4.02, a Lender may disclose all documents and to the assignee or participant or proposed assignee or participant any information which it now or hereafter may have relating to Borrower the Lessee furnished to such Instrument Holder by or Borroweron behalf of the Lessee; provided, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any confidential information relating to the Lessee received by it from such Instrument Holder in a manner consistent with that set forth in Section 6.17 hereof and any other provision of the Transaction Documents relating to the preservation of confidentiality.
(f) Anything in this Section 4.02 to the contrary notwithstanding, any Instrument Holder may assign and pledge all or any of the Instruments held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to applicable regulations of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided that any payment made by the Lessee to the Trustee for the benefit of such assigning and/or pledging Instrument Holder in accordance with the terms of the Transaction Documents shall satisfy the Lessee's businessobligations under the Transaction Documents in respect thereof to the extent of such payment.
(g) Any other provision No assignment shall result in this Agreement notwithstanding, any Lender may at any time create a security interest in, change in the Note Rate or pledge, all or any portion of its rights under and interest Certificate Rate applicable to the Instrument in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A question.
(h) Regardless of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14number of Instrument Holders, at all times the Instrument Holders shall designate a single "Agent" to interface with Lessee and the Trustee, and the Lessee and Trustee shall be required to pay to or otherwise deal only with the Agent and not the individual Instrument Holders. Wherever the Transaction Documents grant rights or remedies to the Instrument Holders (either in the aggregate or to a particular class of Instrument Holders) all such Federal Reserve Bank may enforce such pledge rights and remedies shall be exercised through the Agent. Lessee and Trustee shall be free to ignore directions or security interest in instructions delivered directly by any manner permitted under Instrument Holder rather than by Agent on behalf of the Instrument Holders (or applicable lawportion thereof).
Appears in 2 contracts
Samples: Transaction Agreement (Pep Boys Manny Moe & Jack), Transaction Agreement (Pep Boys Manny Moe & Jack)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, Documents in a minimum amount increments of not less than $5,000,0005,000,000 per assignee; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vitalworks Inc), Loan and Security Agreement (Vitalworks Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees, all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except such minimum amount shall not apply to an Eligible Transferee that is a Related Fund of a Lender or an Affiliate of a Lender); provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment and Acceptance"iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in form and substance satisfactory the amount of $5,000. Anything contained herein to Agentthe contrary notwithstanding, the payment of any fees shall not be required if (x) 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 (y) the assignee is a Related Fund of a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 16 and Section 17.7 of this Agreement. Anything contained in this Section 14.1(b) to the contrary notwithstanding, a Lender may assign any or all of its rights hereunder to a Related Fund or an Affiliate of such Lender without delivering an executed Assignment and Acceptance to the Agent, and without the payment of the above-referenced processing fee; provided, however that (x) Borrower and Agent may continue to deal solely and directly with the assigning Lender until such Assignment and Acceptance has been delivered to Agent, and (y) the failure of such assigning Lender to deliver the Assignment and Acceptance to Agent shall not affect the legality, validity or binding effect of such assignment.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately Subject to the last sentence of subsection (b) above, immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 resulting therefrom. Promptly thereafter Agent shall notify Administrative Borrower of the addition of the Assignee and the resulting adjustment of the Commitments resulting therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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 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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and their Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, and in addition to Section 2.16, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR 31, C.F.R. Section 203.14203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent, on behalf of the Borrowers, shall maintain at its address set forth in Section 12 a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of Lenders, and the Commitment of, and certain of the Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”), provided that, in the case of an assignment or delegation covered by the last sentence of subsection (b) above, which is not reflected in the Register, the assignee Lender shall maintain a comparable Register on behalf of Borrower. The entries in the Register shall be conclusive and binding for all purposes, and Borrower, Parent, Agent, and Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 2 contracts
Samples: Loan and Security Agreement (Evergreen Holdings Inc), Loan and Security Agreement (Trust Created February 25 1986)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Notwithstanding anything to the contrary contained herein, Borrowers hereby acknowledges that as of the date of this Agreement, Agent is attempting to syndicate up to $20,000,000 of the Maximum Revolver Amount from Persons, other than Foothill, to provide financial accommodations as a "Lender" hereunder and, in connection therewith, certain modifications or amendments to this Agreement and the other Loan Documents may be required if Agent determines, in its Permitted Discretion, that the structure, terms, pricing or amount of the financial accommodations provided for hereunder are necessary for Agent to successfully syndicate the transactions hereunder ("Syndication Modifications"). Borrowers hereby agree that each Borrower and its Subsidiaries shall enter into an amendment to this Agreement with Agent and Lenders reflecting such Syndication Modifications, which amendment shall be in form and substance satisfactory to Agent and Lenders in all respects. Borrowers acknowledges that Agent and Lenders are entering into this Agreement on the date hereof in reliance upon the Borrower's Agreements set forth in this Section 14.1(h).
Appears in 2 contracts
Samples: Loan and Security Agreement (Hudson Highland Group Inc), Loan and Security Agreement (Hudson Highland Group Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment acceptance agreement. In the event that Lender assigns more than 50% of the Obligations and Acceptance other rights and obligations of Lender hereunder and under the other Loan Documents ("Assignment other than in connection with the sale of all or a material portion of Lender's loan portfolio), and Acceptance") in form if Borrower has not consented to such assignment (which consent shall not be unreasonably withheld, delayed, or conditioned, Borrower shall have the right, so long as no Event of Default has occurred and substance satisfactory is continuing, for a period of 60 days from and after the date of such assignment, to Agentprepay the Obligations and terminate this Agreement without being obligated to pay the Applicable Prepayment Premium.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") that are Eligible Transferees, all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except such minimum amount shall not apply to an Eligible Transferee that is a Related Fund of a Lender or an Affiliate of a Lender); providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment and Acceptance"iii) the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in form and substance satisfactory the amount of $5,000. Anything contained herein to Agentthe contrary notwithstanding, the payment of any fees shall not be required if (x) 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 (y) the assignee is a Related Fund of a Lender or an Affiliate of a Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section SECTION 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 ARTICLE 16 and SECTION 17.7 of this Agreement. Anything contained in this SECTION 14.1(B) to the contrary notwithstanding, a Lender may assign any or all of its rights hereunder to a Related Fund or an Affiliate of such Lender without delivering an executed Assignment and Acceptance to the Agent, and without the payment of the above-referenced processing fee; PROVIDED, HOWEVER that (x) Borrower and Agent may continue to deal solely and directly with the assigning Lender until such Assignment and Acceptance has been delivered to Agent, and (y) the failure of such assigning Lender to deliver the Assignment and Acceptance to Agent shall not affect the legality, validity or binding effect of such assignment.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately Subject to the last sentence of subsection (b) above, immediately upon Agent's receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 resulting therefrom. Promptly thereafter Agent shall notify Administrative Borrower of the addition of the Assignee and the resulting adjustment of the Commitments resulting therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoPRO TANTO.
(e) Any Lender may at any time, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "ParticipantPARTICIPANT") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating LenderORIGINATING LENDER") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); providedPROVIDED, howeverHOWEVER, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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 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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of SECTION 17.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and their Subsidiaries and their respective businesses.
(g) Any other provision in this Agreement notwithstanding, and in addition to SECTION 2.16, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR 31, C.F.R. Section 203.14203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent, on behalf of the Borrowers, shall maintain at its address set forth in SECTION 12 a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of Lenders, and the Commitment of, and certain of the Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "REGISTER"), provided that, in the case of an assignment or delegation covered by the last sentence of subsection (b) above, which is not reflected in the Register, the assignee Lender shall maintain a comparable Register on behalf of Borrower. The entries in the Register shall be conclusive and binding for all purposes, and Borrower, Parent, Agent, and Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 1 contract
Samples: Loan and Security Agreement (Evergreen International Aviation Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,00010,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 16 and Section 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written notice to Agent and, so long as no Default or Event of Default has occurred and is continuing, with the written consent of Borrower (which consent will not be unreasonably withheld), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of Exhibit A-1; and substance satisfactory (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $5,000; provided further, however, that no consent of Borrower shall be required in connection with an assignment by a Lender of all or substantially all of its portfolio of loans.
(b) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any guarantor or the performance or observance by Borrower or any guarantor of any of its obligations under this 92 Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A any Co-Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent the Co-Agents to take such action as agent agents on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, and the Co-Agents by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender Lender, in each case hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, howeverfurther, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("a fully executed Assignment and Acceptance", and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in form the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and substance satisfactory to Agentthe Assignee need not be an Eligible Transferee 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 the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (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 Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall effect a novation between Borrower and the Assignee; 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 Article 16 and Section 17.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender Xxxxxx (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 occurrence of an Event of Default, each Participant shall shall, to the extent permitted by law, 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Debt and Security Agreement
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (provided that such minimum amount shall not apply to any assignment and delegation by a Lender to an Affiliate of a Lender); provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; or , (E) change the amount or due dates of scheduled principal repayments or repayments, prepayments or premiums, or (F) subordinate the Liens of Agent for the benefit of the Lender Group to the Liens of any other creditor of any Borrower; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees assignees (or any other assignee, if such assignment is provided that no written consent of Agent shall be required in connection with any assignment and delegation by a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such LenderLender to an Eligible Transferee) (each an "Assignee") all, or any ratable part of all, -------- of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until until
(i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; ;
(ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance; and
("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and Acceptance"separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if such assignment is in form and substance satisfactory to Agentconnection 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) From and after the date that Agent notifies the assignor Lender that it has received an executed Assignment and Acceptance, Acceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and and
(ii) the assignor 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 Section 11.3 10.2 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed each Assignee's making its processing fee payment under the Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests ----------- in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents ------------------ (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that that
(i) 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) Borrower, Agent, Borrower and S&A Agent 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 sole and exclusive 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and
(v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, Collections or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section Sec. 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance agreement; provided, further, however, that unless an Assignment Event of Default has occurred and Acceptance ("Assignment and Acceptance") in form and substance satisfactory is continuing, Borrower shall have given its prior written consent to Agentsuch assignment.
(b) From and after the date that Agent notifies Lender provides Borrower with such written notice and executed assignment and acceptance agreement in accordance with the assignor Lender that it has received an executed Assignment and Acceptanceterms hereof, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR business subject to Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.16.6
Appears in 1 contract
Samples: Loan and Security Agreement (New World Restaurant Group Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent an appropriate assignment and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 11.2 hereof) and be released from its future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated .
(d) Upon the request of Lender, any Assignee or Borrower in connection with an assignment to an Assignee pursuant to this Section 14.1, the parties hereto shall amend the Loan Documents and take such other actions, in each Assignee shall reduce case, in such Commitments manner as Lender may in its Permitted Discretion require in order to (i) cause the Lender (or its designee) to be an agent hereunder, (ii) cause this Agreement to be in the form of an agented loan and (iii) continue the perfection of the assigning Lender pro tantosecurity interests granted pursuant to the Loan Documents in favor of the agent and the Lenders hereunder.
(e) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); Documents, provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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, S&A Agent, Borrower, the CollectionsBorrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Any assignment or participation of all or any rights under this Agreement or any other Loan Document shall in all events be subject to applicable Gaming Laws (including any notice requirements to gaming authorities, and potential required approvals or findings of suitability by such authorities, or the rights of any applicable authority to invalidate, restrict or condition any such assignment or participation).
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except such minimum amount shall not apply to any Affiliate of a Lender or to a Related Fund or account managed by a Lender); provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance"the Assignee need not be an Eligible Transferee if (y) such assignment is in form and substance satisfactory to Agentconnection 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 (z) the Assignee is an Affiliate of a Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 Article 16 and Section 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Agent, in its capacity as agent for the Borrower, shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of the Borrowings held by such Lender. 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). 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), Agent 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 an assignment or delegation covered by Section 14.1(a)(z), the Lender that is the assignee shall maintain a comparable Register on behalf of Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") . Anything contained herein to the contrary notwithstanding, the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received provides Administrative Borrower with such written notice and an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Article 15 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to 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 Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , and (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 rights and duties of Lender 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 15.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Cryolife Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; Assignee and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance agreement. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) nothing contained herein shall release Lender from obligations that survive the originating termination of this Agreement, including Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance Section 16.9 of such obligations, (iii) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") . Anything contained herein to the contrary notwithstanding, the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received provides Administrative Borrower with such written notice and an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15.7 of this Agreement.
(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: (1) 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; thereto, (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to 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 Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , and (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers (and Guarantors) and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or Guarantors or the performance or observance by Borrower Borrowers or Guarantors of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Guarantors, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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) (1) release (or contractually subordinate any of Agent's Liens on) all or a material portion of the Collateral (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, or (2) release any of the 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; participating (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender; or , (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 (F) eliminate 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.3.2
Appears in 1 contract
Samples: Loan and Security Agreement (Riviera Holdings Corp)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except that such minimum amount shall not apply to an Affiliate of a Lender or to be a Related Fund); provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if (x) 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 (y) the assignee is an Affiliate (other than individual(s)) of a Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment (if applicable) of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; or , (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; , or (vF) such Participant shall agree subordinate the Liens of Agent for the benefit of the Lender Group on all or substantially all of the Collateral to be bound by the confidentiality provisions Liens of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business other creditor of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's ’s business, provided that such Lender shall obtain from assignees or participants confidentiality covenants substantially equivalent to those contained in Section 16.17(d).
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. United States Treasury Regulation 31 CFR Section § 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Subject to the last sentence of this Section 14.1(h), Borrower shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name of a Lender as the registered owner of each Advance, as the case may be, held by such Lender. 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). Subject to the last sentence of this Section 14.1(h), 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 an assignment or sale of any Registered Loan (and the Registered Note, if any, evidencing the same), Borrower and Agent 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 an assignment or delegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a register comparable to the Register on behalf of Agent.
(i) In the event that a Lender sells participations in a Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 1 contract
Samples: Loan and Security Agreement (Orbital Sciences Corp /De/)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part -------- of all, of the Obligations, the Commitments and the other rights right; and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal -------- ------- solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if such assignment is in connection with any merge, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder herein under have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its ----------- Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents ------------------ (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Or Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business., so long as such potential assignee or participant has previously agreed in writing to keep such documents and information confidential pursuant to Section 16.17 as if it were a Lender hereunder. -------------
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14(S)203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (DSG International LTD)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee and such assignment shall be treated as a Participation as described in Section 14.1(e) until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.party
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From and after the date that Agent notifies the assignor Lender that it Borrower has received an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including Lender’s obligations under Section 13 and Section 16.8 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3i) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7ii) 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. 69.
(d) Immediately upon Lender’s receipt and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 Loan arising therefrom. The Commitment portion of the Loan allocated to each the Assignee shall reduce such Commitments the portion of the Loan allocated to the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons Eligible Transferees (a "“Participant"”) participating interests in the Obligations, the Commitment, its Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain a “Lender” for all purposes of this Agreement and the originating other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender's ” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent 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 not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower hereunder (including Covered Taxes) 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, S&A Agent, Borrower, the Collections, the Collateralany other Loan Party or any other Subsidiary of Borrower, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.8, disclose all documents and information which it now or hereafter may have relating to Borrower the Loan Parties and their respective businesses. For the avoidance of doubt, the preceding sentence shall not override, or Borrower's business.
(g) Any other provision in this Agreement notwithstandingotherwise vary, 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 in favor confidentiality provision of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, other instrument to which both Borrower and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawLender are party.
Appears in 1 contract
Samples: Term Loan Agreement
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees assignees (or any other assigneeeach, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof11.3) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment indemnification, assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's ’s business, provided that the prospective assignee or participant has agreed in writing to comply with the provisions of Section 16.10.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 16 and Section 17.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent's receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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 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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss. 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Marketing Services Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (and, if no Event of Default then exists and is continuing, the Administrative Borrower (each such consent shall not be unreasonably withheld or delayed)) assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "“Assignee"”) all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an a fully executed Assignment and Acceptance ("“Assignment and Acceptance"”) in the form of Exhibit A-1; and substance satisfactory (iii) the assignor Lender or Assignee has paid to Agent for Agent’s sole and separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent and Administrative Borrower shall not be required (and payment of any fees shall not be required) if (i) 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 the assigning Lender, or (ii) such assignment is to an Affiliate of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or any guarantor or the performance or observance by Borrower Borrowers or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed each Assignee’s making its processing fee payment under the Assignment and Acceptance, 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 of the Assignor and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments Commitment of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, which consent shall not be unreasonably withheld, (and, if no Event of Default then exists and is continuing, the Administrative Borrower (whose consent shall not be unreasonably withheld)) sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender's ’s obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive 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 a material portion 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 hereunder in which such Participant through such Lenderis participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower Borrowers hereunder shall be determined as if such Originating 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; provided, however, that no Participant may exercise any such right of setoff without the notice to and consent of Agent. The rights of any Participant shall only shall be derivative through the originating Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the ObligationsAdvances or the Letters of Credit. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of the Lender Group, and Borrowers shall have no rights as a third party beneficiary of any of such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers’ business.
(g) Any Notwithstanding any other provision in this Agreement notwithstandingAgreement, (i) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank FRB or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawlaw and the Administrative Borrower shall have no right to consent thereto, and (ii) the Agent shall not be entitled to consent to any assignment or participation arising as a result of the acquisition of a Lender or all or any portion of its loan portfolio by any other Person.
Appears in 1 contract
Samples: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower Borrower, and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("executed Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From and after the date that Agent Lender notifies the assignor Lender Borrower that it has received an executed Assignment and Acceptance, assignment (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 have the rights and obligations of a the Lender under the Loan Documents, and (ii) the assignor 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, shall relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") its Obligations hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Lender shall remain a “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of the Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, and (iii) Borrower, Agent, and S&A Agent Borrower shall continue to deal solely and directly with the originating original 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(fd) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's Borrowers business.
(ge) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , and (ii) such Lender and the Assignee shall have delivered to Agent Administrative Borrower an appropriate assignment and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.the
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more an Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) Transferee (each an "AssigneeASSIGNEE") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents; PROVIDED, in a minimum amount of $5,000,000; provided, howeverHOWEVER, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall and a copy of the executed assignment agreement between Lender and the Assignee have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to AgentLender.
(b) From and after the date that Agent notifies the assignor Lender that it has received provides Administrative Borrower with such written notice and an executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section SECTION 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Companies and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section SECTION 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Companies and the Assignee; 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 ARTICLE 16 and SECTION 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Companies or the performance or observance by Borrower Companies of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent's receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 tantoPRO TANTO.
(e) Any Lender may at any time, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "ParticipantPARTICIPANT") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating LenderORIGINATING LENDER") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); providedPROVIDED, howeverHOWEVER, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerCompanies, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 DocumentDocument (or enter into any agreement not to consent to any particular action or otherwise attempt to circumvent this provision), 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower Companies 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 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, S&A Agent, BorrowerCompanies, the CollectionsCollections of Companies, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of SECTION 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.Companies and their respective businesses. -95-
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees The Lenders (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such LenderLenders shall so agree) (each an "Assignee") allshall have the right, or any ratable part of all, without the consent of the Obligations, the Commitments and the other Borrower (so long as Borrower's rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent may continue Documents are not adversely affected to deal solely and 68 directly with 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, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From and after the date that Agent notifies the assignor Lender that it has received an executed Assignment and Acceptance, (i) the Assignee thereunder shall be a party hereto andany material extent), to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptanceconsummate a Securitization. Furthermore, each Lender shall have the rights and obligations right, without the consent of a Lender under the Loan Documents, and Borrower (ii) the assignor Lender shall, but subject to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptanceprovisions of this Section 10.9), relinquish to, sell, assign, otherwise transfer and/or participate its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights rights, interest and obligations under this Agreement and the other Loan Documents, in whole or in part, to any Person or Persons. The Borrower shall keep confidential all information relating to such proposed Securitization, assignment or participation and the identity of each potential holder of Securities, assignee or participant (except to the extent that if such information were Confidential Information and Borrower were a Lender shall cease that such Lender, pursuant to the provisions of Section 10.28, would be a party hereto and theretopermitted to disclose the same).
(b) Each assignee with respect to any Assignment (an "Assignee"), and the assigning Lender, shall execute and deliver an Assignment and Assumption Agreement substantially in the form of Exhibit A to that certain Co-Lender and Retained Interest Agreement among the Lenders and Agents, with (and subject to) the subscribed consent of the Administrative Agent and, to the extent expressly required hereby, the Borrower (an "Assignment and Assumption Agreement"); provided that if an Assignee is an Affiliate of such assignment transferor Lender or was a Lender immediately prior to such assignment, no consent of the Administrative Agent or the Borrower shall effect be required; provided further that no Agent shall have any obligations to an Assignee until such Agent shall have received written notice of the name, address, telephone and facsimile numbers and Loan Commitment Percentage of such Assignee. Each Assignment shall be of a novation constant, and not a varying, percentage of all of the transferring Lender's rights and obligations under the Loan Documents. Upon execution and delivery of such instrument and payment by such Assignee to such transferor Lender of an amount equal to the purchase price agreed between Borrower such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Agreement and shall have all the rights and obligations of a Lender, and the Assigneetransferor Lender 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 consummation of any Assignment pursuant to this subsection (b), the transferor Lender, the Agents and the Borrower shall make appropriate arrangements so that, if required, a new Note(s) is issued to the Assignee and the prior Note(s) held by the transferor Lender is canceled. Notwithstanding anything in this Agreement to the contrary, after an Assignment by a Lender, (x) the "Lender" (prior to the Assignment) shall (1) continue to have the benefits of all indemnifications and (2) shall continue to have all other rights and obligations under the Loan Documents that such Lender had during the period such party was "Lender" hereunder to the extent such rights and obligations relate to such period and (y) the transferring Lender shall not be released from any liability of such Lender under the Loan Documents that arose prior to such Assignment.
(c) By executing On or prior to the effective date of any Assignment contemplated hereby, if the Administrative Agent shall so require, the transferor Lender shall deliver to the Administrative Agent, at such Lender's own expense, (i) an endorsement to the Title Insurance Policy stating that the Assignment in question will not impair in any way the Lien of the Deed of Trust and delivering (ii) such other documents, instruments and other materials, including, without limitation, legal opinions, as the Administrative Agent shall reasonably deem necessary.
(d) Unless an Event of Default shall then exist, no Lender shall consummate 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: (1) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect a Participation to any statements, warranties Competitor; provided that each such Lender shall be entitled to rely on a written statement from the proposed assignee or representations made participant that it is not a Competitor (without making any further inquiry or investigation) and no such Lender shall be liable to the Borrower or to any other Person if such Lender shall consummate an Assignment or Participation with a Person that shall in or fact be a Competitor notwithstanding the fact that such Person delivered such a written statement.
(e) Notwithstanding any other provision contained 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition contrary, any Lender may assign all or any portion of Borrower the Loan or the performance Notes held by it to any Federal Reserve Bank or observance the United States Treasury as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by Borrower of any of such Federal Reserve Bank. No such assignment shall release the transferor Lender from its obligations under this Agreement or any other Loan Document furnished pursuant hereto; hereunder.
(3f) such Assignee confirms that it has received a copy Without the prior written consent 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; (4) such Assignee will, independently and without reliance upon the Administrative Agent, S&A Agent, no Lender shall consummate a Participation to a Foreign Lender unless such assigning Foreign 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, submit to the extent applicable, with Section 17.10; and (7) such Assignee agrees that it will perform Administrative Agent the applicable Exemption/Reduction Forms in accordance with their terms all the provisions of the obligations which by the terms of this Agreement are required to be performed by it as a Lendersubsection 2.10(b). 69
(d) Immediately upon receipt and acknowledgment by Agent Each holder of a fully executed Assignment and Acceptance, this Agreement shall be deemed to be amended to participation interest in 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons Loan Documents (a "Participant") participating interests in shall be entitled to receive all information received directly by the ObligationsLenders from the Borrower under this Agreement. After the effectiveness of any Participation, the Commitment, applicable Lender shall provide notice to the Borrower and the Agents of the identity, address and other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 pertinent information pertaining 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as Participant. The Borrower agrees that if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 occurrence of an Event of DefaultDefault shall exist, then each Participant shall be deemed to have the right of set-off setoff in respect of its participating interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a the Lender under this Agreement. The rights of any Borrower also agrees that each Participant only shall be derivative entitled to the benefits of subsections 2.10, 5.1(I) and 5.1(J) (subject to the limitations set forth in such subsections) with respect to its participation in the Loan outstanding from time to time. Notwithstanding any sale of a participation interest by a Lender, such Lender shall remain fully responsible for the performance of all of its obligations under the Loan Documents and, except as otherwise expressly provided herein, no such Participant shall acquire any rights under this Agreement except by and through the originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information party from which it now or hereafter may have relating to Borrower or Borrower's businessacquired its participation interest.
(g) Any other provision Nothing contained in this Agreement notwithstanding, any Lender may at any time create a security interest inshall prohibit, or pledgeshall be deemed to prohibit, the Person that is any Agent from serving as Agent and concurrently being or becoming a Participant and/or Lender.
(h) The Administrative Agent shall maintain records of all Assignments and Participations and, upon request therefor by any Agent or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank Lender or U.S. Treasury Regulation 31 CFR Section 203.14Borrower, and shall permit such Federal Reserve Bank may enforce Agent or Lender or Borrower, as applicable, to review such pledge or security interest in any manner permitted under applicable lawrecords.
Appears in 1 contract
Samples: Loan Agreement (Las Vegas Sands Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, all or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0001,000,000; provided, however, that Borrower(x) so long as no Default or Event of Default has occurred and is continuing, AgentLender shall obtain the prior written consent of Borrower (not to be unreasonably withheld, delayed or conditioned) prior to any such assignment by Lender to another Person that is not an Affiliate of Lender, and S&A Agent (y) Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
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Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 Article 16 and Section 16.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower and its Subsidiaries or the performance or observance by Borrower or any Guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; Agreement and the other Loan Documents, (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 occurrence of an Event of Default, each Participant shall be deemed to have the right of set-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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
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Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an executed Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and, payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1i) 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; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the ObligationsObligations of such Lender, the CommitmentCommitment of such Lender, and the other rights and interests of that such Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 14.1(e) are solely for the benefit of Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of any such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 (i) in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law, or (ii) in favor of any other Person, provided that no such pledge or security interest shall release Lender from its obligations hereunder or substitute any such pledge or secured party as a party to this Agreement.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0002,500,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance reasonably satisfactory to Agent and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests interest by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating 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 a material portion 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; Participant, or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 14.1(e) (other than clause (v) of this Section) are solely for the benefit of the Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose on a confidential basis all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
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Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents; PROVIDED, in a minimum amount of $5,000,000; provided, howeverHOWEVER, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent under an appropriate assignment and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") acceptance agreement in form and substance satisfactory to AgentLender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section SECTION 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "ParticipantPARTICIPANT") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; providedPROVIDED, howeverHOWEVER, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
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Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvey Electronics Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of EXHIBIT A-1; and substance satisfactory (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $2,500. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any guarantor or the performance or observance by Borrower or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt each Assignee executing and acknowledgment by Agent of a fully executed delivering the Assignment and Acceptance and making its processing fee payment under the Assignment and Acceptance, 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 of the Assignor and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments Commitment of the assigning Lender pro tantoPRO TANTO.
(e) Any Lender may at any time, with the written consent of S&A Agent, which consent shall not be unreasonably withheld, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; providedPROVIDED, howeverHOWEVER, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive 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 participant is participating; (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating; (C) release all or a material portion 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 hereunder in which such Participant through such Lenderis participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower hereunder shall be determined as if such Originating 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; PROVIDED, HOWEVER, that no Participant may exercise any such right of setoff without the notice to and consent of Agent. The rights of any Participant shall only shall be derivative through the originating Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the ObligationsAdvances or the Letters of Credit. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this SECTION 15.1(e) are solely for the benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Notwithstanding any other provision in this Agreement notwithstandingAgreement, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 16 and Section 16.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower, any Subsidiary of any Borrower or the performance or observance by any Borrower or its of any of its their respective obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) such Assignee confirms that it has received a copy of this Agreement and the Second Lien Intercreditor 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
Lender and (d7) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the such 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's expressly assumes all rights and obligations of such assigning Lender under this the Second Lien Intercreditor 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree agrees to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesterms thereof.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Credit Agreement (Magnetek Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Foothill Group Agent, assign and delegate to one or more Eligible Transferees assignees (or any other assignee, if such assignment is provided that no written consent of Foothill Group Agent shall be required in connection with any assignment and -88- 95 delegation by a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such LenderLender to an Eligible Transferee) (each an "Assignee") all, or any ratable (or, if otherwise agreed among the Foothill Group, any non-ratable) part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, the foregoing Dollar restriction shall not apply to any such assignment by an existing Lender to any Affiliate of such Lender; provided further that Borrower and S&A Foothill Group Agent may continue to deal solely and 68 directly with 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, shall have been given to Borrower and Foothill Group Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Foothill Group Agent an Assignment and Acceptance in form and substance satisfactory to Foothill Group Agent ("Assignment and Acceptance"); and (iii) other than with respect to the Assignment and Acceptance to be executed and delivered pursuant to Section 3.1(c)(ix) and other than with respect to an assignment by an existing Lender to any Affiliate of such Lender, the assignor Lender or Assignee has paid to Foothill Group Agent for Foothill Group Agent's sole and separate account a processing fee in form the amount of $2,500. Anything contained herein to the contrary notwithstanding, the consent of Foothill Group Agent shall not be required (and substance satisfactory to Agentpayment 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 business or loan portfolio of such Lender.
(b) From and after the date that Foothill Group Agent notifies the assignor Lender that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Foothill Group 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; (5) such Assignee appoints and authorizes Agent and S&A Foothill Group Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Foothill Group Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt the relevant assigning Lender and acknowledgment by Agent Assignee's execution and delivery of a fully executed the related Assignment and Acceptance and Foothill Group Agent's acceptance thereof, and the making of any required processing fee payment under the Assignment and Acceptance, if any, 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, with the written consent of S&A Foothill Group Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Foothill Group Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible TransfereeTransferee or an Affiliate of such Lender); provided, however, that (i) 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) Borrower, Agent, Borrower and S&A Foothill Group Agent 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 sole and exclusive 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Foothill Group Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business, subject to the confidentiality provisions of this Agreement.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Foothill, in its capacity as a Lender, and an Assignee have executed and delivered the Assignment and Acceptance specified in Section 3.1(c)(ix) as of the Closing Date and the rights and duties of Foothill as a Lender, and of any other Assignee of Foothill as a Lender, are subject to such Assignment and Acceptance.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.8 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Lazy Days R.V. Center, Inc.)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely LOAN AND SECURITY AGREEMENT - Page 73 DALLAS2 939606V9 53877-00012 responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0002,500,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with 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, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent; and (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Agent) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower each of the Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) each Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 AgreementAgreement (and the rights of the Originating Lender shall be reduced by a corresponding amount). The rights of any Participant only shall be derivative through the originating Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In Subject to Section 16.17(d), in connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's ’s business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
Appears in 1 contract
Samples: Loan and Security Agreement (Fortegra Financial Corp)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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. So long as no Event of Default has occurred, Lender shall not sell participating interests in the aggregate in excess of fifty percent (50%); provided, this restriction shall not apply to any transaction in which a controlling interest in the Capital Stock of Lender or either of its parent companies, The Foothill Group, Inc., a Delaware corporation, or Xxxxx Fargo & Company, a Delaware corporation, has been sold. 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business; provided, however, that if a proposed assignee or participant is not a financial institution, such proposed assignee or participant shall, as a condition to receiving any non-public information of borrower, enter into a confidentiality agreement with Borrower.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (En Pointe Technologies Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0001,000,000; providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until until
(i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 SECTION 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 ARTICLE 16 and SECTION 16.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Each Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of Assignees all or any substantial a portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other its rights and obligations under this Agreement (including, without limitation, all or a portion of such Lender hereunder its Loans, its Notes, its Facility Commitment, and under the other Loan Documents, in a minimum amount of $5,000,000its Participations); provided, however, that Borrower, Agent, and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until that
(i) written notice of each such assignment, together with payment instructions, addresses and related information with respect assignment shall be to the an Eligible Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; ;
(ii) except in the case of an assignment to another Lender or an assignment of all of a Lender's rights and obligations under this Agreement, any such Assignee partial assignment shall have delivered be in an amount at least equal to Agent and Borrower US $10,000,000.00 of such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and Lender's Commitment;
(iii) each such assignment by a Lender shall be of a constant, and not varying, percentage of all of its Assignee rights and obligations (including Loans, Commitment, Participations, and Total Outstandings owing thereto) under this Agreement;
(iv) the parties to such assignment shall have delivered execute and deliver to Borrower and the Agent for their acceptance an Assignment and Acceptance ("Assignment in the form of Exhibit B attached hereto, together with any Note subject to such assignment and Acceptance") in form and substance satisfactory a processing fee of US $3,500.00 payable to the Agent.; and
(bv) From such assignee shall have and after continuously maintain an office located in the date that Agent notifies the assignor Lender that it has received an executed United States. Upon execution, delivery, and acceptance of such Assignment and Acceptance, (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 of such Assignment and Acceptanceassignment, shall have the rights obligations, rights, and obligations benefits of a Lender under hereunder and the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement Agreement. Upon the consummation of any assignment pursuant to this Section, the assignor, the Agent and the Applicable Borrowers shall make appropriate arrangements so that, if required, new Notes are issued to the assignor and the assignee. If the assignee is not incorporated under the laws of the appropriate jurisdiction for Facilities, it shall deliver to the Borrowers and the Agent certification as to exemption from deduction or withholding of Taxes in accordance with Section 5.06 hereof.
(b) The Agent shall maintain at its address referred to in Section 12.02 hereof 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 each Commitment of, and principal amount of the Total Outstandings owing to, each such Lender from time to time (the "Register"). The entries in the case Register shall be conclusive and binding for all purposes, absent manifest error, and the Applicable Borrowers, the Agent and the Lender 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 Applicable Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance covering executed by the parties thereto, together with any Note subject to such assignment and payment of the processing fee, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B attached hereto, accept such Assignment and Acceptance and record the information contained therein in the Register, and the Agent shall thereafter give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or the remaining a portion of an assigning Lender's its rights and obligations under this Agreement and the other Loan Documents(including all or a portion of its Loans, such Lender shall cease to be a party hereto and thereto)Commitment, Participations, and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental Total Outstandings owing thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating such Lender's obligations 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) Borrowerthe participant shall be entitled to the benefit of the yield protection provisions contained in Article V hereof and the right of set-off contained in Section 12.03 hereof, Agent, (iv) the Applicable Borrowers and S&A Agent the 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 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant Lender shall agree retain the sole right to be bound by enforce the confidentiality provisions obligations of Section 17.16(dthe Applicable Borrowers relating to its Loans, its Notes (if any) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrowerand its Participations and Total Outstandings owing thereto, and (viii) all amounts payable by Borrower hereunder shall be determined as if such Lender had not sold such participation; except thatto approve any amendment, if amounts outstanding under modification, or waiver of any provision of this Agreement are due and unpaid(other than amendments, modifications, or shall have been declared waivers decreasing 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 reducing the amount of its participating principal of or the rate at which interest were owing directly to it as a Lender under this Agreement. The rights is payable or the amount of fees payable on such Loans or any Notes or other Total Outstandings, extending any scheduled principal payment date or date fixed for the payment of interest on such Loans or Notes, releasing any Guarantor or any Borrower or providing for any assignment of their Obligations, or extending any Commitment of such Lender, each of which may, if so agreed in writing, require the prior consent of any Participant only shall be derivative through the originating such participant in such Lender's Commitments and Participations and Total Outstandings owing thereto before such Lender with whom approves any such Participant participates and no Participant shall have any direct rights as to the other Lendersamendment, Agent, S&A Agent, Borrower, the Collections, the Collateral, modification or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselveswaiver).
(fe) In connection with Notwithstanding any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any other provision set forth in this Agreement notwithstandingAgreement, any Lender may at any time create a security interest in, or pledge, assign and pledge all or any portion of its rights Loans, its Notes, its Obligations and its interest under and interest in this Agreement in favor of the Loan Documents to any Federal Reserve Bank in accordance with as collateral security pursuant to Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and any Operating Circular issued by such Federal Reserve Bank Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender may enforce furnish any information concerning any Borrower or any of its Subsidiaries in the possession of such pledge Lender from time to time to assignees and participants (including prospective assignees and participants) evaluating the assignment or security interest in participation and subject to the prior execution by such party of the form of confidentiality agreement required by the Parent as of the Closing Date of all Lenders.
(g) No Borrower may assign any manner permitted rights, powers, duties or obligations under applicable lawthis Agreement or the other Loan Documents without the prior written consent of all the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Technitrol Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, ; (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section Sec. 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.,
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "AssigneeASSIGNEE") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan DocumentsDocuments and, in a minimum amount subject to the last sentence of $5,000,000this SECTION 14.1(a), may do so with the prior written consent of Borrower (which such consent shall not be unreasonably withheld or delayed); providedPROVIDED, howeverHOWEVER, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance agreement. Lender may assign all or any ratable part of all of the Obligations without Borrower's consent if (i) an Assignment and Acceptance Event of Default shall have occurred or be continuing, ("Assignment and Acceptance"ii) in form and substance satisfactory to Agentsubstantially all of the assets of Lender are being sold or otherwise transferred, or (iii) the proposed Assignee is an Affiliate of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section SECTION 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "ParticipantPARTICIPANT") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; providedPROVIDED, howeverHOWEVER, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 occurrence and continuation 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessbusiness and such Participant shall be bound by the confidentiality provisions set forth in SECTION 16.10.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or oR security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (MRS Fields Holding Co Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances in connection therewith under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the AssigneeAssignee with respect to the assigned rights and obligations; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including Lender’s obligations under Section 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance, 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 rights and duties of Lender 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of the Borrowers and the Agent, which consents shall not be unreasonably withheld, at any time assign and delegate to one or more Eligible Transferees Assignees (provided, that no written consent of a Borrower or any other assignee, if such assignment is the Agent shall be required in connection with any assignment and delegation by a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio Lender to an Eligible Assignee that is an Affiliate of such Lender or to any other Lender) (each an "Assignee") all, or any ratable part of all, of the ObligationsLoans, the Revolving Loan Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documentshereunder, in a minimum amount of Five Million Dollars ($5,000,000); provided, however, that Borrower, Agent, the Borrowers and S&A the Agent may continue to deal solely and 68 directly with 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, shall have been given to Borrower the Borrowers and the Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower the Borrowers and the Agent an Assignment and Acceptance Agreement in the form of Exhibit N ("Assignment and AcceptanceAcceptance Agreement") together with any Note or Notes subject to such assignment and (iii) the assignor Lender or Assignee has paid to the Agent a processing fee in form and substance satisfactory to Agentthe amount of Three Thousand Dollars ($3,000).
(b) From and after the date that the Agent notifies the assignor Lender that it has received (and provided its consent and the Borrowers have consented (to the extent necessary herein) with respect to) an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 AcceptanceAcceptance Agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 AcceptanceAcceptance Agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(c) By executing and delivering an Assignment and Acceptance, Within five (5) Banking Days after its receipt of notice by the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) such Assignee confirms Agent that it has received an executed Assignment and Acceptance Agreement and payment of the processing fee (and provided, that it consents to such assignment pursuant to Section 10.11(a)), the Borrowers shall execute and deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and Revolving Loan Commitment and, if the assignor Lender has retained a copy portion of its Loans and its Revolving Loan Commitment, replacement Notes in the principal amount of the Revolving Loans retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by such Lender). Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance Agreement, 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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 Revolving Loan Commitments arising therefrom. The Revolving Loan Commitment allocated to each Assignee shall reduce such Revolving Loan Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, banks or other Persons not Affiliates of either Borrower (a "Participant") participating interests in the Obligationsany Loans, the Commitment, Revolving Loan Commitment of that Lender and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) 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) Borrower, Agent, the Borrowers and S&A the Agent 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, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right shall have rights 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 toamendment, or consent or waiver with respect would require unanimous consent of the Lenders as described in the first proviso to this Agreement or Section 10.
1. In the case of any other Loan Document would (A) extend such participation, the final maturity date of the Obligations hereunder in which such Participant is participating; (B) reduce the interest rate applicable shall be entitled to the Obligations hereunder in which such Participant is participating; (C) release all benefit of Sections 4.3, 4.4, 4.5, 4.6 and 10.4 as though it were also a Lender hereunder, but shall not have any other rights under this Agreement, or a material portion of the Collateral or guaranties (except to the extent expressly provided herein or in any of the other 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower the 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 .
(e) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided by the Borrowers and provided to it by or on behalf of Dura, MC, either the Borrower or any Subsidiary of Dura, or by the Agent on Dura's, MC's, a Borrower's or Subsidiary's behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than Dura, MC, the Borrowers or any Subsidiary, provided, that such source is not bound by a confidentiality agreement with the applicable Borrower known to the Lender; provided further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Participant only shall be derivative through governmental authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the originating Lender with whom such Participant participates and no Participant shall have provisions of any direct rights as applicable Requirement of Law; (D) to the other Lenders, extent reasonably required in connection with any litigation or proceeding to which the Agent, S&A Agentany Lender or their respective Affiliates may be party, (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document, and (F) to such Lender's independent auditors and other professional advisors; provided, that with respect to disclosures required by clauses (B), (C) or (D) above, Agent and any Lender will give prior notice to the applicable Borrower of any such required disclosure, unless such notice is prohibited by the terms of such required disclosure, as determined by Agent or such Lender. Notwithstanding the foregoing, each Borrower authorizes each Lender to disclose to any bona fide Participant or Assignee (each, a "Transferee") and to any prospective Transferee, such financial and other information in such Lender's possession concerning such Borrower or its Subsidiaries which has been delivered to Agent or the Lenders pursuant to this Agreement or which has been delivered to the Agent or the Lenders by such Borrower in connection with the Lenders' credit evaluation of such Borrower prior to entering into this Agreement; provided, that, unless otherwise agreed by such Borrower, such Transferee agrees in writing to such Lender to keep such information confidential to the Collections, the Collateral, or otherwise in respect same extent required of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselveshereunder.
(f) In connection with Notwithstanding any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any other provision contained in this Agreement notwithstandingor any other Loan Document to the contrary, any Lender may at any time create a security interest in, or pledge, assign all or any portion of its rights under and interest in this Agreement in favor of the Loans or Notes held by it to any Federal Reserve Bank in accordance with or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, Board and any Operating Circular issued by such Federal Reserve Bank Bank, provided, that any payment in respect of such assigned Loans or Notes made by a Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy such Borrower's obligations hereunder in respect to such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
(g) BofA may enforce assign its obligations as an Issuer to an Affiliate of BofA without the prior written consent of any party hereto. In connection with such pledge or security assignment, each of the parties hereto agrees to execute such documents as are reasonably requested by such Affiliate of BofA to effectuate such assignment.
(h) If, pursuant to this subsection, any interest in this Agreement or any manner permitted Note is transferred to any Transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, (i) to represent to the transferor Lender (for the benefit of the transferor Lender, the Agent and the Borrowers) that, under applicable lawlaw and treaties as then in effect, no taxes will be required to be withheld by the Agent, the Borrowers or the transferor Lender with respect to any payments to be made to such Transferee in respect of the U.S. Revolving Loans made in Dollars, (ii) to furnish to the transferor Lender, the Agent and the Borrowers either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such Transferee claims entitlement to complete exemption from U.S. federal withholding tax on all interest payments with respect to the U.S. Revolving Loans hereunder), and (iii) to agree (for the benefit of the transferor Lender, the Agent and the Borrowers) to provide the transferor Lender, the Agent and the Borrowers a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such Transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(i) The Agent shall maintain at the address of its Domestic Office set forth on the signature page hereto a copy of each Assignment and Acceptance Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Revolving Loan Commitments of, and principal amount of the Revolving Loans owing to, each Lender from time to time and participations in Letters of Credit (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, 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 Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Dura Automotive Systems Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent an appropriate assignment and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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 setoff 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrowerthe consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing, Agentor (2) such assignment is to a Lender or an Affiliate of a Lender; provided, and S&A Agent further, that Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, (X) the Assignee need not be an Assignment Eligible Transferee 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 the assigning Lender, (Y) such assignment shall be made at no cost to Borrower and Acceptance shall not result in any additional reporting or other requirements for Borrower, and ("Assignment and Acceptance"Z) shall not result in form and substance satisfactory Borrower reporting to Agentmore than a single Lender entity.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptance, 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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Subject to Buyer's right to prior written approval, not to be unreasonably withheld, at such time as no Default or Event of Default has occurred and is continuing, Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Obligors may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the sole benefit of Borrower that, so long as no Event of Default has occurred and Acceptance is continuing, Lender shall ("Assignment x) retain at least 50.1 percent of the Obligations and Acceptance"commitment to make Advances under Section 2.1 of this Agreement, and (y) not assign any ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time; provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees shall not be applicable if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower Obligors and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Obligors and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.Loan
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and (ii) related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent an appropriate assignment and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) acceptance agreement. From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); Documents, provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) Lender. In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. United States Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan Agreement (Synalloy Corp)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; 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 Article 15 and Section 16.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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-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 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, S&A Agent, BorrowerBorrowers, the CollectionsCollections of Borrowers or their Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.7, disclose to the proposed assignee or participant all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business. Prior to making any such disclosure of any such documents or information, the Lender shall cause such prospective assignee or participant to enter into a confidentiality agreement containing confidentiality provision substantially similar to those contained in Section 16.17(d).
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Subject to the following sentence, each Lender (an "ASSIGNOR") may assign its Rights and delegate obligations as a Lender under the Loan Papers to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned Assignees pursuant to an Assignee until Assignment and Acceptance, so long as (i) written notice each assignment shall be of such assignmenta constant, together with payment instructionsand not a varying percentage of all Rights and obligations thereunder, addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee each Assignor shall have delivered in each case pay a $3,500 processing fee to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10Administrative Agent, and (iii) no such Lender assignment shall be made unless a pro rata assignment is made under the Amended and Restated Credit Agreement and no such assignment (including the amount of the simultaneous assignment pursuant to the Amended and Restated Credit Agreement) shall be in an amount less than $10,000,000. Within five Business Days after Administrative Agent receives notice of any such assignment, Company shall execute and deliver to Administrative Agent, in exchange for the Notes issued to Assignor, new Notes to the order of such Assignor and its Assignee assignee in amounts equal to their respective Specified Percentages of the Commitment, if the Commitment is outstanding. Such new Notes shall have delivered to Borrower be dated the effective date of the assignment. It is specifically acknowledged and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From agreed that on and after the effective date that Agent notifies of each assignment, the assignor Lender that it has received an executed Assignment and Acceptance, (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 have the rights Rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the AssigneePapers.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell participations to one or more commercial banks, financial institutions, Persons in all or other Persons (a "Participant") participating interests in the Obligations, the Commitment, any of its Rights and the other rights and interests of that Lender (the "originating Lender") hereunder and obligations under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Papers; providedPROVIDED, howeverHOWEVER, that (i) 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) Borrowersuch Lender shall remain the holder of its Notes for all purposes of the Loan Papers, (iv) the participant shall be granted the Right to vote on or consent to only those matters described in SECTIONS 9.1(A), (B), (C) and (D), (v) Company and each Subsidiary of Company, Administrative Agent, and S&A Agent other Lenders shall continue to deal solely and directly with the originating such Lender in connection with the originating Lender's rights its 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; Papers and (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 occurrence of participation is for 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesless than $5,000,000.
(fc) In Any Lender may, in connection with any such assignment or participation participation, or proposed assignment or participation, a Lender may disclose all documents and to the assignee or participant, or proposed assignee or participant, any information which it now or hereafter may have relating to Borrower Company or Borrower's businessany Subsidiary of Company furnished to such Lender by or on behalf of Company or any Subsidiary of Company, provided such Person executes a Confidentiality Agreement.
(gd) Any Notwithstanding any other provision set forth in this Agreement notwithstandingAgreement, any each 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 it and the Note or 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 Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawSystem.
Appears in 1 contract
Samples: Credit Agreement (Franchise Finance Corp of America)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From and after the date that Agent notifies the assignor Lender that it Borrower has received an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including Lender’s obligations under Section 13 and Section 16.8 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3i) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7ii) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessbusiness to an assignee or participant that has executed a confidentiality agreement in accordance with Section 16.5.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.. -77-
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.8 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Law.
Appears in 1 contract
Samples: Loan and Security Agreement (Marlin Business Services Corp)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 Article 16 and Section 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent's receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14Section203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Respiratory Care Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; providedPROVIDED, howeverHOWEVER, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section SECTION 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); providedPROVIDED, howeverHOWEVER, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; Assignee an appropriate assignment and acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the benefit of Borrowers that, so long as no Event of Default has occurred and is continuing, Lender shall (iix) such Assignee shall have delivered retain more than fifty percent (50%) of the Obligations and commitment to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to make Advances under Section 17.102.1 of this Agreement, and (iiiy) not assign any ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time, provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees shall not be applicable if such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Peninsula Gaming Corp)
Assignments and Participations. (a) Any Each Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of Assignees all or any substantial a portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other its rights and obligations under this Agreement (including, without limitation, all or a portion of such Lender hereunder its Commitment, the Advances owing to it and under the other Loan Documents, in a minimum amount of $5,000,000Note or Notes held by it); provided, however, that Borrower, Agent, and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice each such assignment shall be of a constant, and not a varying, percentage of all of the assigning Lender's rights and obligations under this Agreement, (ii) the amount of the Commitment of the assigning Lender being assigned pursuant to each such assignment, together with payment instructions, addresses and related information assignment (determined as of the date of the Lender Assignment with respect to such assignment) shall in no event be less than the Assignee, shall have been given to Borrower lesser of the amount of such Lender's then remaining Commitment and Agent by such Lender and $5,000,000 (except in the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10case of assignments between Lenders at the time already parties hereto), and (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, a Lender Assignment, together with any Note or Notes subject to such assignment and a processing and recordation fee of $2,500. Promptly following its receipt of such Lender Assignment, Note or Notes and its Assignee fee, the Agent shall have delivered to Borrower accept and Agent an record such Lender Assignment in the Register. Upon such execution, delivery, acceptance and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.
(b) From recording, from and after the effective date that Agent notifies the assignor specified in each Lender that it has received an executed Assignment and AcceptanceAssignment, (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 AcceptanceLender Assignment, shall have the rights and obligations of a Lender under the Loan Documents, hereunder and (iiy) the Lender assignor 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 AcceptanceLender Assignment, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and and, in the case of an a Lender 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). Notwithstanding anything to the contrary contained in this Agreement, and any Lender may at any time assign all or any portion of the Advances owing to it to any Affiliate of such assignment Lender. No such assignment, other than to an Eligible Assignee, shall effect a novation between Borrower and release the Assigneeassigning Lender from its obligations hereunder.
(cb) By executing and delivering an Assignment and Acceptancea Lender Assignment, the assigning Lender assignor thereunder and the Assignee assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (1i) other than as provided in such Assignment and AcceptanceLender Assignment, 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 any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement any Loan Document or any other Loan Document instrument or document furnished pursuant heretothereto; (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the Parent or the performance or observance by the Borrower or the Parent of any of its obligations under this Agreement any Loan Document or any other Loan Document instrument or document furnished pursuant heretothereto; (3iii) such Assignee assignee confirms that it has received a copy of this Agreementeach Loan Document, together with copies of the financial statements referred to in Section 5(d) of the Support Agreement 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 AcceptanceLender Assignment; (4iv) such Assignee assignee will, independently and without reliance upon Agent, S&A the 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 Agreementthe Loan Documents; (5v) such Assignee assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes Agent and S&A the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement the Loan Documents as are delegated to the Agent or S&A Agent, as applicable, by the terms hereofthereof, together with such powers as are reasonably incidental thereto; and (6vii) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) such Assignee assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement the Loan Documents are required to be performed by it as a Lender. 69Anything in this Section 8.07 to the contrary notwithstanding, this Section 8.07 shall not apply to any of the assignments contemplated by Section 3.01(e).
(c) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Lender Assignment 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 of the Advances 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 Borrower, the Parent, 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 or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Immediately upon Upon its receipt and acknowledgment by Agent of a fully Lender Assignment 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 Agent shall, if such Lender Assignment has been completed and Acceptanceis in substantially the form of Exhibit 8.07 hereto, this Agreement shall be deemed to be amended (i) accept such Lender Assignment, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the extentBorrower. Within 10 Business Days after its receipt of such notice, but only the Borrower, at its own expense, shall execute and deliver to the extentAgent in exchange for the surrendered Note or Notes a new Note to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to such Lender Assignment and, necessary if the assigning Lender has retained a Commitment hereunder, a new Note 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 Commitment retained by it hereunder. Such new Note or 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 Lender Assignment and shall otherwise be in substantially the form of Exhibit 1.01A-1 hereto.
(e) Any Each Lender may at any time, with the written consent of S&A Agent, sell participations to one or more commercial banks, financial institutions, institutions or other Persons (entities in all or a "Participant") participating interests in the Obligations, the Commitment, and the other portion of its rights and interests of that Lender (the "originating Lender") hereunder and obligations under the other Loan Documents (provided that no written consent including, without limitation, all or a portion of S&A Agent shall be required in connection with any sale of any such participating interests its Commitment, the Advances owing to it and the Note or Notes held by a Lender to an Eligible Transfereeit); provided, however, that (i) the originating such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) 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 holder of any such Note for all purposes of this Agreement, and (iv) the Borrower, Agent, the Agent and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In Any Lender may, in connection with any such assignment or participation or proposed assignment or participationparticipation pursuant to this Section 8.07, a Lender may disclose all documents and to the assignee or participant or proposed assignee or participant, any information which it now or hereafter may have relating to the Borrower or Borrower's businessthe Parent furnished to such Lender by or on behalf of the Borrower or the Parent; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree, in accordance with the terms of Section 8.08, to preserve the confidentiality of any Confidential Information relating to the Borrower or the Parent received by it from such Lender.
(g) Any If any Lender (or any bank, financial institution, or other provision entity to which such Lender has sold a participation) shall (i) make any demand for payment under Section 2.08 or 2.13, (ii) give notice to the Agent pursuant to Section 2.14 or (iii) determine not to extend the Termination Date in response to any request by the Borrower pursuant to Section 2.18, then (A) in the case of any demand made under clause (i), above, or the occurrence of the event described in clause (ii), above, within 30 days after any such demand or occurrence (if, but only if, in the case of any demanded payment described in clause (i), such demanded payment has been made by the Borrower), and (B) in the case of the occurrence of the event described in clause (iii), above, at any time prior to the then-scheduled Termination Date, the Borrower may, with the approval of the Agent (which approval shall not be unreasonably withheld), and provided that no Event of Default or Unmatured Default shall then have occurred and be continuing, demand that such Lender assign in accordance with this Section 8.07 to one or more Eligible Assignees designated by the Borrower all (but not less than all) of such Lender's Commitment and the Advances owing to it within the period ending on the latest to occur of (x) the last day in the period described in clause (A) or (B), above, as applicable, (y) the last day of the longest of the then current Interest Periods for such Advances, and (z) the latest maturity date of any B Advances owing to such Lender. If any such Eligible Assignee designated by the Borrower shall fail to consummate such assignment on terms acceptable to such Lender, or if the Borrower shall fail to designate any such Eligible Assignees for all or part of such Lender's Commitment or Advances, then such demand by the Borrower shall become ineffective; it being understood for purposes of this subsection (g) that such assignment shall be conclusively deemed to be on terms acceptable to such Lender, and such Lender shall be compelled to consummate such assignment to an Eligible Assignee designated by the Borrower, if such Eligible Assignee (1) shall agree to such assignment by entering into a Lender Assignment with such Lender and (2) shall offer compensation to such Lender in an amount equal to all amounts then owing by the Borrower to such Lender hereunder and under the Note made by the Borrower to such Lender, whether for principal, interest, fees, costs or expenses (other than the demanded payment referred to above and payable by the Borrower as a condition to the Borrower's right to demand such assignment), or otherwise.
(h) Anything in this Agreement Section 8.07 to the contrary notwithstanding, any Lender may at any time create a security interest in, or pledge, assign and pledge all or any portion of its rights under Commitment and interest in this Agreement in favor of the Advances owing to it to any Federal Reserve Bank in accordance with (and its transferees) as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, System and any Operating Circular issued by such Federal Reserve Bank may enforce Bank. No such pledge or security interest in any manner permitted under applicable lawassignment shall release the assigning Lender from its obligations hereunder.
Appears in 1 contract
Samples: Credit Agreement (Ies Utilities Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (provided, that so long as no Event of Default exists and the Maximum Revolving Amount does not exceed $25,000,000, there shall be no more than four Lenders holding commitments at any time); provided, however, that Borrower, Agent, Companies and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Companies or the performance or observance by Borrower Companies of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerCompanies, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower Companies 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 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, S&A Agent, BorrowerCompanies, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Companies or Borrower's Companies’ business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section § 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with 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, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance; and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and Acceptance"separate account a processing fee in the amount of $3,500. Anything contained herein to the contrary notwithstanding, the consent of Agent: (y) shall not be required if such assignment is in form 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 substance satisfactory (z) shall not be unreasonably withheld, conditioned, or delayed in connection with any assignment and delegation by a Lender to Agentany Eligible Transferee.
(b) From and after the date that Agent notifies the assignor Lender that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt the satisfaction of the conditions set forth in Section 15.1(a)(i), (ii), and acknowledgment by Agent of a fully executed Assignment and Acceptance(iii), 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, Borrower and S&A Agent 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 sole and exclusive 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Aureal Semiconductor Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of Exhibit A-1; and substance satisfactory (iii) the assignor Lender or Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $2,500. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any guarantor or the performance or observance by Borrower or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed each Assignee's making its processing fee payment under the Assignment and Acceptance, 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 of the Assignor and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments Commitment of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, which consent shall not be unreasonably withheld, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has the sole and exclusive 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 participant is participating; (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating; (C) release all or a material portion 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 hereunder in which such Participant through such Lenderis participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower hereunder shall be determined as if such Originating 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; provided, however, that no Participant may exercise any such right of setoff without the notice to and consent of Agent. The rights of any Participant shall only shall be derivative through the originating Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the ObligationsAdvances or the L/C Guaranties. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(g) Any Notwithstanding any other provision in this Agreement notwithstandingAgreement, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Factory Card Outlet Corp)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees assignees (or any other assignee, if such assignment is provided that no written consent of Agent shall be required in connection with any assignment and delegation by a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such LenderLender to an Eligible Transferee) (each an "Assignee") all, or any ratable part part, of the Obligations, the Term Loan A Obligations, the Total Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, and, in the case of any Assignee other than an Affiliate of such Lender, such assignment and delegation shall be in a minimum amount of the lesser of (i) $5,000,000 or (ii) all, but not less than all, of the remaining portion then held by such Lender of the Obligations, the Term Loan A Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents; PROVIDED, in a minimum amount of $5,000,000; provided, howeverHOWEVER, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (ix) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iiiy) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Assumption Agreement ("Assignment and AcceptanceAssumption") in form and substance satisfactory acceptable to Agent.
, with a copy thereof (bfor notice purposes only) From and after the date that Agent notifies the assignor Lender that it has received an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, Borrower; and (iiz) the assignor Lender shallor Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $2,500; PROVIDED FURTHER that applicable new Notes will be issued, against delivery of the Notes being replaced thereby, to such Assignee and, if the assigning Lender assigns to such Assignee less than all of the assigning Lender's right, title, and interest in and to the Obligations and the Term Loan A Obligations, 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and needed to reflect their respective Pro Rata Portions (7Advances) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by Maximum Revolving Amount, Pro Rata Portions (Term Loans B) of the terms Term Loans B, Pro Rata Portions (Term Loans A) of this Agreement are required to be performed by it as a Lenderthe Term Loans A, and Pro Rata Portions (Total) of the Additional Discount Amount. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, this Agreement shall be deemed to be amended Anything contained herein to the extentcontrary notwithstanding, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall not be required (and payment of any fees shall not be required) if such assignment is in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); providedmerger, howeverconsolidation, that (i) the originating Lender's obligations under this Agreement shall remain unchangedsale, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent 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 totransfer, or any consent or waiver with respect to, this Agreement other disposition of all 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 a material substantial portion of the Collateral business or guaranties (except to the extent expressly provided herein or in any loan portfolio 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Cai Wireless Systems Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; Assignee and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance agreement. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including Lender’s obligations under Section 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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 shall 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, S&A Agent, BorrowerBorrowers or Guarantors, the CollectionsCollections of Borrowers or their Domestic Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and their Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section SECTION 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Ultimate Electronics Inc)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14Section203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Leapfrog Enterprises Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent DF by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent by an appropriate assignment and Borrower such formsacceptance agreement, if any, that such Assignee a form of which is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentattached hereto as Exhibit A-1.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides DF with such written notice and executed Assignment assignment and Acceptance, acceptance agreement (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between each Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon each Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to any Borrower or any Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section ss. 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower Borrowers and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower Borrowers and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and 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 business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrowers) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Pioneer Companies Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agentacceptance agreement.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect affect a novation between Borrower and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In Subject to Section 16.10 and pursuant to a written confidentiality agreement, the form and substance of which are mutually acceptable to Lender and Borrower (and Borrower acknowledges that the form of confidentiality agreement delivered to Lender pursuant to Section 3.1(s) is acceptable to Borrower), in connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an assignment and Agent acceptance. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance, (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 assignment and Acceptanceacceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss. 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0007,500,000; provided, however, that Borrowerso long as Foothill Capital Corporation is the Agent hereunder, Agentit shall retain a minimum Commitment hereunder of $20,000,000; provided further, however, that Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower Borrowers and Agent by such Lender and the Assignee; (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower Borrowers and Agent an a fully executed Assignment and Acceptance ("Assignment and Acceptance") in the form of Exhibit A-1; and substance satisfactory (iii) the Assignee has paid to Agent for Agent's sole and separate account a processing fee in the amount of $2,500. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if such assignment is in connection with any merger, consolidation, sale, transfer, or other -77- 85 disposition of all or any substantial portion of the business or loan portfolio of such Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or any guarantor or the performance or observance by Borrower Borrowers or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed each Assignee's making its processing fee payment under the Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) 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) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.the
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) allthat are Eligible Transferees; provided, that no Loan Party or Affiliate of a Loan Party shall be permitted to become an Assignee) all or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any Lender or (y) 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); provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, ("Assignment iii) Agent has notified the assigning Lender of its receipt thereof in accordance with Section 13.1(b), and Acceptance"(iv) unless waived by the Agent, the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in form and substance satisfactory to Agentthe amount of $3,500.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 10.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower among Borrower, the assigning Lender, and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon receipt and acknowledgment by Agent of a fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) nothing contained herein shall release any assigning Lender from obligations that survive the originating termination of this Agreement, including such assigning Lender's ’s obligations under this Agreement shall remain unchanged, (iiSection 15 and Section 17.9(a) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent 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 a material portion 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; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by 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 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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(fc) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.[Intentionally Omitted]
Appears in 1 contract
Samples: Credit Agreement (SAVVIS, Inc.)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, ; in a minimum amount of $5,000,000; 5,000,000 provided, however, that Borrower, Agent, and S&A Agent Borrower may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") . Anything contained herein to the contrary notwithstanding, the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received provides Borrower with such written notice and an executed Assignment and 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; provided, however, that nothing contained herein shall release an assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligations, and the Commitmentother rights and interests of Lender hereunder and under the other Loan Documents provided, however, that (i) Lender shall remain the "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, and the other rights and interests of that Lender (the hereunder shall not constitute a "originating Lender") " hereunder and or under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrower and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14ss.203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent, assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) (each an "Assignee") all, or any ratable part of allpart, of the Obligations, the Commitments Commitments, and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum Commitment amount (if such assignment is a partial assignment) of $5,000,0001,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee Assignee
1. Anything contained herein to the contrary notwithstanding, the consent of Agent shall have delivered to Borrower not be required (and Agent an Assignment and Acceptance ("Assignment and Acceptance"payment of any fees shall not be required) if such assignment is in form and substance satisfactory to Agentconnection 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) From and after the date that Agent notifies the assignor Lender that it has received an a fully executed Assignment and Acceptance, 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee.
(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: (1) 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 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 furnished pursuant hereto; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any guarantor or the performance or observance by Borrower or any guarantor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A Agent, such assigning Lender 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon receipt and acknowledgment by Agent the execution of a fully executed the Assignment and Acceptance, 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 of the Assignor and Assignee arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments Commitment of the assigning Lender pro tanto.
(e) Any Lender may at any time, with the written consent of S&A Agent, which consent shall not be unreasonably withheld, sell to one or more commercial banks, financial institutions, or other Persons (a "Participant") participating interests in the Obligations, the Commitment, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating Lender shall transfer or grant any participating interest under which the Participant has any right to consent to any departure by Borrower or the Lender Group from any provision of this Agreement or any Loan Documents, or to the exercising or refraining from exercising of any powers or rights which any Lender may have under or in respect of the Loan Documents (including, without limitation, the right to enforce the Obligations hereunder), or to approve or prohibit 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 a material portion 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 hereunder in which such Participant through such Lenderis participating; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower hereunder shall be determined as if such Originating 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; provided, however, that no Participant may exercise any such right of setoff without the notice to and consent of Agent. The rights of any Participant shall only shall be derivative through the originating Originating Lender with whom such Participant participates and no Participant shall have any direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the ObligationsAdvances or the Letters of Credit. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 15.1(e) are solely for the benefit of the Lender Group, and Borrower shall have no rights as a third party beneficiary of any of such provisions and shall not have its rights or obligations under any of the Loan Documents increased, decreased, or otherwise affected by any participation.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessbusiness so long as such third party agrees in writing to the provisions of Section 17.16(d) in respect thereof.
(g) Any Notwithstanding any other provision in this Agreement notwithstandingAgreement, 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; Assignee and (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower an appropriate assignment and Agent acceptance agreement. Anything contained herein to the contrary notwithstanding, the Assignee need not be an Assignment and Acceptance ("Assignment and Acceptance") Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its any future obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance 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), and such assignment shall effect a novation between Borrower Borrowers and the Assignee; provided, however, that nothing contained herein shall release Lender from obligations that survive the termination of this Agreement, including Lender's obligations under Section 16.9 of this Agreement.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower's receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "Participant") participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a "Lender" hereunder or under the other Loan Documents and Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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 shall 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, S&A Agent, BorrowerBorrowers or Guarantors, the CollectionsCollections of Borrowers or their Domestic Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 16.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessBorrowers and their Subsidiaries and their respective businesses.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14𨴣.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except such minimum amount shall not apply to an Affiliate of a Lender or a Related Fund); provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if (x) 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 (y) the assignee is an Affiliate of Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment (if applicable) of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1i) 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; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligationsits Obligations owing to such Lender, the CommitmentCommitment of such Lender, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating 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 a material portion 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 LenderParticipant; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating, or (F) subordinate the Liens of Agent for the benefit of the Lender Group to the Liens of any other creditor of any Loan Party; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of any such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Administrative Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Term Loan and each Advance, as the case may be, held by such Lender. 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). 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 (other than with respect to an assignment or delegation covered by Section 14.1(a)(y)), 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 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 an assignment or delegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register, on behalf of Administrative Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Companies and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower Companies and the Assignee; 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 Article 16 and Section 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Companies or the performance or observance by Borrower Companies of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerCompanies, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 DocumentDocument (or enter into any agreement not to consent to any particular action or otherwise attempt to circumvent this provision), 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower Companies 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 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, S&A Agent, BorrowerCompanies, the CollectionsCollections of Companies, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessCompanies 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§ 203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) that are Eligible Transferees all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment iii) the assigning Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $3,000. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required and Acceptance") the Assignee need not be an Eligible Transferee if such assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender.
(b) From and after the date that Agent notifies the assignor assigning Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 16 and Section 17.7 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee); provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 occurrence of an Event of Default, each Participant shall be deemed to have the right of set-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 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, S&A Agent, Borrower, the CollectionsCollections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.7, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand its Affiliates 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14§203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable lawApplicable Laws.
Appears in 1 contract
Samples: Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Assignments and Participations. (ai) Any 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 Transferees Transferee (each, an “Assignee”), with the prior written consent (such consent not be unreasonably withheld or any other assigneedelayed) of: (A) Borrowers; provided, that no consent of Borrowers shall be required (1) if such assignment a Default or Event of Default has occurred and is continuing, or (2) in connection with an assignment to a merger, consolidation, sale, transfer, Person that is a Lender or an Affiliate (other disposition than natural persons) of all or any substantial portion of the business or loan portfolio of such a Lender) (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, howeverprovided further, that Borrower, Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within five Business Days after having received notice thereof; and (B) Agent, Swing Lender, and S&A Agent may continue to deal solely and 68 directly with 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, shall have been given to Borrower and Agent by such Lender and the Assignee; Issuing Bank.
(ii) such Assignee Assignments shall have delivered be subject to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent.the following additional conditions:
(b) From and after the date that Agent notifies receives the assignor Lender that it has received an executed Assignment and AcceptanceAcceptance 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 assignor 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 Section 11.3 hereof10.3) and be released from its any future obligations to make Advances 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 obligations under Section 15 and such assignment shall effect a novation between Borrower and the AssigneeSection 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: (1i) 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 124 166856726_9 any other Loan Document furnished pursuant hereto; , (2ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower any Loan Party or the performance or observance by Borrower any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3iii) 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; , (4iv) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5v) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent or S&A Agent, as applicable, by the terms hereofhereof and thereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7vi) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and acknowledgment by Agent delivery of a fully executed Assignment and Acceptancenotice 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, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons (a "“Participant"”) participating interests in the all or any portion of its Obligations, the its Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that that
(i) the originating Originating Lender shall remain a “Lender's ” 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; Lender (other than a waiver of default interest), or (E) change decrease the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums; premiums payable to such Participant through such Lender, (v) such Participant no participation shall agree be sold to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; natural person, (vi) no participating interest participation shall be sold to any Person if S&A Agent a Loan Party or the originating Lender knows or reasonably should know that such Person's primary line an Affiliate of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrowera Loan Party, and (viiivii) all amounts payable by Borrower 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-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 direct rights as to the other Lenders, Agent, S&A Agent, Borrower, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves.
(f) In connection with any such assignment or participation or proposed assignment or participationparticipation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, a Lender may may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessany 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 Section 203.14§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 (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments (and the principal amount thereof and stated interest thereon) held by such Xxxxxx (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its Revolver Commitments 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 Revolver Commitments 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 Xxxxxx, 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 126 166856726_9 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 under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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
Samples: Credit Agreement (Nautilus, Inc.)
Assignments and Participations. (a) Any Lender may may, with the written consent of Agent (provided that no written consent of Agent shall be required in connection with any assignment and delegation by a Lender to an Eligible Transferee), assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "Assignee") all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0005,000,000 (except such minimum amount shall not apply to an Affiliate of a Lender or a Related Fund); provided, however, that Borrower, Agent, Borrowers and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Administrative Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") in form and substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for Agent's separate account a processing fee in the amount of $5,000. Anything contained herein to the contrary notwithstanding, the consent of Agent shall not be required (and payment of any fees shall not be required) if (x) 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 (y) the assignee is an Affiliate of Lender or a Related Fund.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Administrative Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment (if applicable) of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its obligations to make Advances 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower Borrowers or the performance or observance by Borrower Borrowers of any of its their obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon each Assignee's making its processing fee payment under the Assignment and Acceptance and receipt and acknowledgment by Agent of a such fully executed Assignment and Acceptance, 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, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "Participant") participating interests in the Obligationsits Obligations owing to such Lender, the CommitmentCommitment of such Lender, and the other rights and interests of that Lender (the "originating Originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating 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 Originating Lender shall remain solely responsible for the performance of such obligations, (iii) BorrowerBorrowers, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Originating 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 a material portion 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 LenderParticipant; or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiumspremiums in respect of the Obligations hereunder in which such Participant is participating, or (F) subordinate the Liens of Agent for the benefit of the Lender Group to the Liens of any other creditor of any Loan Party; and (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viii) all amounts payable by Borrower 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 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. The provisions of this Section 14.1(e) are solely for the benefit of the Lender Group, and none of the Borrowers shall have any rights as a third party beneficiary of any such provisions.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose to a third party all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers' business.
(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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(h) Administrative Borrower shall maintain, or cause to be maintained, a register (the "Register") on which it enters the name of a Lender as the registered owner of each Term Loan and each Advance, as the case may be, held by such Lender. 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). 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 (other than with respect to an assignment or delegation covered by Section 14.1(a)(y)), 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 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 an assignment or delegation covered by Section 14.1(a)(y), the assigning Lender shall maintain a comparable Register, on behalf of Administrative Borrower.
(i) In the event that a Lender sells participations in the Registered Loan, such Lender shall maintain a register on which it enters the name of all participants in the Registered Loans held by it (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.
Appears in 1 contract
Samples: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Assignments and Participations. (a) Any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments Obligations and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,000; provided, however, that Borrower, Agent, and S&A Agent Borrowers may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Administrative Borrower and Agent by such Lender and the Assignee; Assignee an appropriate assignment and acceptance agreement. Anything contained herein to the contrary notwithstanding, Lender agrees for the benefit of Borrowers that, so long as no Event of Default has occurred and is continuing, Lender shall (iix) such Assignee shall have delivered retain more than fifty percent (50%) of the Obligations and commitment to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to make Advances under Section 17.102.1 of this Agreement, and (iiiy) not assign any ratable part of the Obligations and commitment to make Advances under Section 2.1 of this Agreement to more than three Assignees at any given time, provided, however, that, the minimum retention of Obligations and commitment to make Advances and the restriction on the number of Assignees shall not be applicable if such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance ("Assignment and Acceptance") assignment is in form and substance satisfactory to Agentconnection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of Lender.
(b) From and after the date that Agent notifies the assignor Lender that it has received an provides Administrative Borrower with such written notice and executed Assignment assignment and Acceptanceacceptance agreement, (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 assignment and Acceptanceacceptance agreement, shall have the assigned and delegated rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned and delegated by it pursuant to such Assignment assignment and Acceptanceacceptance agreement, relinquish its rights (except with respect to Section 11.3 hereof) and be released from its obligations to make Advances under this Agreement (and in the case of an Assignment assignment and Acceptance acceptance agreement 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), and such assignment shall effect affect a novation between Borrower Borrowers and the Assignee.
(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: (1) 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; (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (3) 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; (4) such Assignee will, independently and without reliance upon Agent, S&A 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; (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69
(d) Immediately upon Borrower’s receipt and acknowledgment by Agent of a such fully executed Assignment assignment and Acceptanceacceptance agreement, 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 rights and duties of Lender arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto.
(ed) Any Lender may at any time, with the written consent of S&A Agent, time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Lender (a "“Participant"”) participating interests in the Obligations, the Commitment, Obligations and the other rights and interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) Lender shall remain the originating “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations and the other rights and interests of Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, Borrowers and S&A Agent Lender shall continue to deal solely and directly with the originating Lender each other in connection with the originating Lender's ’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall not 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by Borrower 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, S&A Agent, BorrowerBorrowers, the Collections, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselvesLender.
(fe) In connection with any such assignment or participation or proposed assignment or participation, a Lender may disclose all documents and information which it now or hereafter may have relating to Borrower Borrowers or Borrower's Borrowers’ business.
(gf) 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 in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
Appears in 1 contract
Samples: Loan and Security Agreement (Old Evangeline Downs Capital Corp)
Assignments and Participations. (a) Any With the prior written consent of the Agent, any Lender may assign and delegate to one or more Eligible Transferees (or any other assignee, if such assignment is in connection with a merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of such Lender) assignees (each an "“Assignee"”) all, or any ratable part of all, of the Obligations, the Commitments and the other rights and obligations of such Lender hereunder and under the other Loan Documents, in a minimum amount of $5,000,0001,000,000; provided, however, that Borrower, Agent, Borrower and S&A Agent may continue to deal solely and 68 directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses addresses, and related information with respect to the Assignee, shall have been given to Borrower and Agent by such Lender and the Assignee; , (ii) such Assignee shall have delivered to Agent and Borrower such forms, if any, that such Assignee is required to deliver pursuant to Section 17.10, and (iii) such Lender and its Assignee shall have delivered to Borrower and Agent an Assignment and Acceptance Acceptance, and ("Assignment and Acceptance"iii) the assignor Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of $5,000 unless such fee is waived by the Agent. Anything contained herein to the contrary notwithstanding, the payment of any fees shall not be required if such assignment is (x) in form and substance satisfactory connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of the assigning Lender or (y) by a Lender to Agentanother Lender or an Affiliate or Related Fund or such Lender.
(b) From and after the date that Agent notifies the assignor Lender (with a copy to Borrower) that it has received an executed Assignment and AcceptanceAcceptance and payment of the above-referenced 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 have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor 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 Section 11.3 hereof) and be released from its any future obligations to make Advances 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), and such assignment shall effect a novation between Borrower and the Assignee; 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 Article 16 and Section 17.8 of this Agreement.
(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: (1) 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; , (2) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or the performance or observance by Borrower of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; , (3) 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; , (4) such Assignee will, independently and without reliance upon Agent, S&A 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; , (5) such Assignee appoints and authorizes Agent and S&A Agent to take such action as agent on its behalf actions and to exercise such powers under this Agreement as are delegated to Agent or S&A Agent, as applicable, by the terms hereof, together with such powers as are reasonably incidental thereto; , and (6) such Assignee has complied, to the extent applicable, with Section 17.10; and (7) 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. 69.
(d) Immediately upon Agent’s receipt of the required processing fee payment and acknowledgment by Agent of a the fully executed Assignment and Acceptance, 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 its ratable portion of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tantoTerm Loans.
(e) Any Lender may at any time, with the written consent of S&A Agent, sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of such Lender (a "“Participant"”) participating interests in the its Obligations, the Commitment, and the other rights and interests of that Lender (the "originating “Originating Lender"”) hereunder and under the other Loan Documents (provided that no written consent of S&A Agent shall be required in connection with any sale of any such participating interests by a Lender to an Eligible Transferee)Documents; provided, however, that (i) the originating Originating Lender shall remain a “Lender's ” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the 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 obligations under this Agreement shall remain unchanged, (ii) the originating Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower, Agent, and S&A Agent the Lenders shall continue to deal solely and directly with the originating Originating Lender in connection with the originating 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 a material portion 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; , or (E) change the amount or due dates of scheduled principal repayments or prepayments or premiums; (v) such Participant shall agree to be bound by the confidentiality provisions of Section 17.16(d) as if such Participant were a party hereto; (vi) no participating interest shall be sold to any Person if S&A Agent or the originating Lender knows or reasonably should know that such Person's primary line of business directly competes with the business of Borrower, (vii) at Borrower's request, each Participant shall certify that the primary line of business of such Participant does not directly compete with the business of Borrower, and (viiiv) all amounts payable by 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 occurrence of an Event of Default, each Participant shall be deemed to have the right of set-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 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, S&A Agent, Borrower, the CollectionsCollections of any Credit Party, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to 70 participate directly in the making of decisions by the Lenders among themselves. Notwithstanding anything to the contrary in this Section 14.1(e), the Borrower agrees that each Participant shall be entitled to the benefits of Section 16.11 (subject to the requirements and limitations therein, including the requirements under Section 16.11(a) and (b), and so long as such Participant agrees to be subject to and comply with Section 16.11 as if it were a Lender (it being understood that the documentation required under Section 16.11(a) shall be delivered to the participating Lender and Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 14. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a record of the names and addresses of each Participant, and the Term Loan Commitments of, and principal amount of the Term Loans and interest thereon owing to, such Participant pursuant to the terms hereof (the “Participant Register”). Any such Participant Register shall be available for inspection by the Borrower, the Agent 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 Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(f) In connection with any such assignment or participation or proposed assignment or participation, a Lender may may, subject to the provisions of Section 17.8, disclose all documents and information which it now or hereafter may have relating to Borrower or Borrower's businessand 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 Agreement, including without limitation, in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR Section 203.14, §203.24 (and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law).
(h) Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of each Lender, and principal amount of the Term Loans and interest thereon owing to, such Lender pursuant to the terms hereof. The entries in such register shall be conclusive, and Borrower, Agent and Lenders may treat each Person whose name is recorded therein pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Such register shall be available for inspection by Borrower and any Lender, at any reasonable time upon reasonable prior notice to Agent.
Appears in 1 contract
